A    TREATISE 


Oy    THE    LAW    OF 


*         SUITS     BY     ATTACHMENT 


THE  UNITED  STATES. 


A   TREATISE 


ON   THE   LAW   OF 


SUITS    BY    ATTACHMENT 


THE    UNITED    STATES. 


CHARLES   D.   DRAKE,   LL.D., 

CHIEF    JUSTICE    OF    THE    UNITED    STATES    COURT    OF    CLAIMS. 


FIFTH  EDITION, 

REVISED,      CORRECTED,      AND        ENLARGED: 


AN    APPENDIX, 


CONTAINING   THE   LEADING   STATUTORY  PROVISIONS  OF   THE   SEVERAL   STATES 

AND   TERRITORIES   OF  THE   UNITED   STATES,    IN   RELATION 

TO  SUITS   BY  ATTACHMENT. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1878. 


Entered  according  to  Act  of  Congress,  in  the  year  1878,  by 
CHARLES   D.  DRAKE, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


cambbidge: 
press  of  john  wilson  and  son. 


TO 

31  T   BROTHER-IN-LAW, 

ALEXANDER    H.     McGUFFEY,    ESQ., 

OF   CINCINNATI, 

AS    AN    EXPRESSION    OF    ADMIRATION,     RESPECT, 
AND    AFFECTION, 

THIS    WORK    IS    DEDICATED. 


729402 


PREFACE   TO   THE    FIFTH    EDITION. 


In  preparing  this  edition  for  the  press,  the  work  in  all  its 
parts  has  been  subjected  to  a  more  searching  and  exhaust- 
ive revision  than  on  any  previous  occasion.  The  Reports  of 
the  whole  country  have  been  carefully  explored,  only  to  give 
occasion  to  repeat  the  statement  made  in  the  Preface  to  the 
First  Edition,  that  "the  lapse  of  time  and  the  accumulation 
of  adjudications  seem  to  make  no  sensible  diminution  in  the 
annual  number  of  reported  cases,  nor  any  great  difference 
in  their  novelty  or  their  interest."  Nearly  six  hundred  ad- 
ditional cases  are  cited,  the  matter  derived  from  which  has, 
in  almost  every  instance,  been  interwoven  in  the  text  ; 
several  passages  have  been  rewritten ;  the  Index  has 
been  much  enlarged ;  and  the  Appendix  corrected  by  the 
latest  Attachment  laws  of  the  several  States  and  Territories. 

Notwithstanding  earnest  and  laborious  efforts  —  extend- 
ing, at  intervals,  through  a  quarter  of  a  century  —  to  make 
the  work  all  that  it  should  be,  it  were  vain  for  me  to  sup- 
pose it  without  defects.  Whoever  will  inform  me  of  any, 
will  receive  my  grateful  acknowledgment. 

Confident,  nevertheless,  that  the  work,  as  now  issued,  will 
be  found  much  improved,  I  recommit  it  to  the  profession. 

"WAsnixGTOx,  D.  C,  September,  1878. 


PREFACE    TO   THE   FIEST  EDITION. 


The  necessity  for  a  work  on  the  law  of  Suits  by  Attach- 
ment in  the  United  States  occurred  to  me  early  in  my  pro- 
fessional life  ;  but  I  shared  the  then  prevalent  impression 
of  the  Bar,  that  the  Attachment  Acts  of  the  several  States 
were  so  dissimilar  as  to  baffle  any  attempt  at  a  systematic 
treatise  on  that  subject,  based  on  the  jurisprudence  of  the 
whole  country  and  adapted  for  general  use.  Some  years 
since,  however,  in  preparing  for  the  argument  of  a  ques- 
tion of  garnishment,  an  examination  of  the  Reports  and 
legislation  of  a  majority  of  the  States  satisfied  me  —  and  all 
subsequent  researches  have  but  confirmed  the  opinion  — 
that  the  diversity  in  the  statutes  constituted  in  reality  no 
impediment  of  any  moment  to  the  successful  preparation  of 
such  a  treatise.  The  purpose  to  prepare  this  volume  was 
then  formed,  and  has  been  prosecuted,  at  irregular  intervals, 
in  the  midst  of  other  and  more  pressing  avocations,  until 
the  result  is  now  submitted  to  the  profession. 

The  value  of  the  proceeding  by  attachment  is  everywhere 
asserted  in  the  reported  opinions  of  our  higher  State  courts, 
and  is  universally  and  practically  illustrated  in  the  history 
of  the  Colonial,  Territorial,  and  State  legislation  of  this 
country.  Among  the  early  statutes  enacted,  have  always 
been  those  authorizing  the  preliminary  attachment  of  the 
property  of  debtors  ;  and  the  general  tendency  has  been, 
and  is,  to  enlarge  the  scope  and  increase  the  efficiency  of 


X  PKEFACE  TO   THE   FIRST   EDITION. 

this  remedy.  Upon  these  grounds  alone  the  importance  of 
this  subject  might,  if  necessary,  be  amply  vindicated ;  but  on 
that  point  no  doubt  has  at  any  time  disturbed  the  prosecu- 
tion of  my  task.  My  conviction  is,  that  on  no  branch  of  the 
law  is  a  treatise  more  needed  by  the  profession  in  this  coun- 
try than  on  this ;  and  it  is  gratifying  to  know  that  such  is 
the  general  opinion  of  my  professional  brethren,  wherever 
the  proposed  preparation  of  this  work  has  been  known.  It 
is  now  to  be  decided  whether  this  attempt  to  supply  an  ac- 
knowledged need  will  be  regarded  with  equal  favor. 

The  materials  here  wrought  together  are  almost  wholly 
American.  Great  Britain,  the  fountain  of,  and  exercising 
continually  a  marked  influence  over,  our  jurisprudence  gen- 
erally, contributes  in  this  department  comparatively  noth- 
ing. In  that  country,  the  limited  proceeding  under  the 
custom  of  London  gives  rise  to  few  cases  which  find  their 
way  into  the  courts  of  Westminster  Hall.  Here,  however, 
the  universal  use  of  this  remedy  fills  our  Reports  with  cases 
presenting  every  variety  of  questions,  and  the  lapse  of  time 
and  the  accumulation  of  adjudications  seem  to  make  no 
sensible  diminution  in  the  annual  number  of  reported  cases, 
nor  any  great  diff'erence  in  their  novelty  or  their  interest. 
Hence  a  work  of  this  description  reflects  in  a  high  degree 
a  legal  system  and  a  branch  of  jurisprudence  peculiarly  our 
own ;  and  I  confess  to  somewhat  of  satisf\iction  at  being 
instrumental  in  presenting  to  the  Bar  of  the  United  States 
a  volume  which,  without  intentionally  slighting  what  is  to 
be  found  in  the  English  Reports  on  the  subject,  may  be 
justly  claimed  to  be   thoroughly  American.  .  .  . 

CHARLES    D.    DRAKE. 

St.  LO01S,  Missouri,  July  1,  1854. 


TABLE   OF   CONTENTS. 


PAGE 

Alphabetical  Catalogue  of  American  Reports xvii 


Index  to  Cases  Cited xxvii 

CHAPTER   I. 

SECTION 

Origin,  Nature,  and  Objects  of  the  Remedy  by  Attachment     ....       1-8 

CHAPTER   11. 

For  what  Cause  of  Action  an  Attachment  may  issue 9-37  a 

CHAPTER   HI. 

Absent,  Absconding,  Concealed,  and   Non-resident  Debtors;  and 

Debtors  removing  or  fraudulently  disposing  of  their  Property    .     .    38-77  a 

CHAPTER   IV. 

Liability  of  Corporations  and  Representative  Persons  to  be  sued  by 
Attachment 78-82 

CHAPTER  V. 

Affidavit  for  obtaining  an  Attachment 83-113 

CHAPTER   VI. 
Attachment  Bonds 114-183 


XU  CONTENTS. 


CHAPTER    VII. 

SECTION 

Execution  and  Return  of  an  Attachment 183  a-220 


CHAPTER  VIII. 

Effect  and  Office  of  an  Attachment 221-231 

CHAPTER  IX. 

Attachment  of  Real  Estate 232-242 

CHAPTER   X. 

Attachment  of  Personal  Property 24:3-259 

CHAPTER   XI. 

Simultaneous,  Successive,  Conflicting,  and  Fraudulent  Attachments  .  260-289 

CHAPTER   XII. 

Custody  of  Attached  Property 290-311 

CHAPTER   XIII. 
Bail  and  Delivery  Bonds 312-343 

CHAPTER   XIV. 

Bailment  of  Attached  Property 344-396 

CHAPTER   XV. 

Attachments  improvidently  issued,  and  the  Means  of  defeating  them  397-410 

CHAPTER   XVI. 

Dissolution  of  an  Attachment 411-431 

CHAPTER   XVII. 

Notice  to  Absent  Defendants  by  Publication 436-449  a 


CONTENTS.  XUl 


CHAPTER   XVIIL 

SECTION 

Garnishment.  —  General  Views.  —  Division  of  the  Subject  ....  450-467 


CHAPTER   XIX. 

Who  may  be  garnished.  —  Corporations.  —  Non-residents   .     .     .     .468-479 

CHAPTER   XX. 

What  Personal  Property  in  the  Garnishee's  Hands  will  make  him 
hable 480,  481 

CHAPTER   XXI. 

What  Possession  of  Personal  Property  by  a  Garnishee  will  make 

him  liable 482-491  a 

CHAPTER   XXII. 

The  Garnishee's  Liabihty,  as  affected  by  the  Capacity  in  which  he 
holds  the  Defendant's  Property 492-516  b 

CHAPTER  XXIII. 

The  Garnishee's  Liability,  as  aifected  by  Previous  Contracts  touch- 
ing the  Defendant's  Property  in  his  Hands 517-520 

CHAPTER  XXIV. 

The  Garnishee's  Liability,  as  affected  by  Previous  Assignment  of 
the  Defendant's  Property  in  his  Hands,  or  by  its  being  subject 
to  a  Lien,  Mortgage,  or  Pledge 521-540 

CHAPTER    XXV. 

The  Garnishee's  Liability,  as  a  Debtor  of  the  Defendant.  —  General 

Views.  —  Division  of  the  Subject 541-554 

CHAPTER  XXVI. 

The  Garnishee's  Liability,  as  affected  by  the  Time  when  his  Debt 

to  the  Defendant  is  payable 555-559 


XIV  CONTENTS. 


CHAPTER   XXVII. 

SECTION 

The  Garnishee's  Liability,  as  affected  by  his  having  Co-debtors, 
and  by  the  Number  of  the  Defendants,  and  the  Number  of  his 
Creditors 560-572 


CHAPTER   XXVIH. 

The  Garnishee's  Liability,  as  a  Party  to  a  Promissory  Note      .     .     .  573-592 

CHAPTER   XXIX. 

The  Garnishee's  Liability,  as  affected  by  pre-existing  Contracts 

with  the  Defendant  or  third  Persons 593-597 

CHAPTER   XXX. 

The  Garnishee's  Liability,  as  affected  by  a  Fraudulent  Attempt  by 
the  Defendant  to  defeat  the  Payment  of  his  Debts 598-601 

CHAPTER  XXXI. 

The  Garnishee's  Liability,  as  affected  by  an  equitable  Assignment 
of  the  Debt 602-615  a 

CHAPTER  XXXIL 

The  Garnishee's  Liability,  as  affected  by  the  Commencement,  Pen- 
dency, and  Completion  of  Legal  Proceedings  against  him  by  the 
Defendant,  for  the  liecovery  of  the  Debt 616-627 

CHAPTER  XXXIIL 

Answer  of  the  Garnishee 628-658 

CHAPTER   XXXIV. 

Judgment  against  the  Garnishee 658  a-659 

CHAPTER   XXXV. 

Extent  of  Garnishee's  Liability,  as  to  Amount,  and  as  to  the  Time 
to  which  the  Garnishment  relates 600-671 


CONTENTS.  XV 


CHAPTER   XXXVI. 

SECTION 

The  Garnishee's  Right  of  Defence  against  his  Liability  to  the  De- 
fendant      672-690 


CHAPTER   XXX VH. 

The  Garnishee's  Relation  to  the  Main  Action 691-698 

CHAPTER  XXXVIIL 

Where  Attachment  is  a  Defence,  and  the  Manner  of  Pleading  it   .     .  699-723 

CHAPTER  XXXIX. 

Action  for  Malicious  Attachment 724-745 


PAGE 

APPENDIX 645 


INDEX 709 


ALPHABETICAL    CATALOGUE 


AMERICAN    REPORTS/ 


Abbott's  Admiralty  Reports;  U.  S.  Southern  Dist.  New  York;  1vol.;  1847- 

1850. 
Abbott's  Cotirt  of  Appeals  Cases;  New  York;  4  vols. ;  1803-1868. 
Abbott's  Practice  Reports;  New  York;  19  vols.;  1851-1805. 
Abbott's  Practice  Reports;  New  Series;  New  York;  16  vols.;  1865-1874. 
Abbott's  New  Cases;  New  York;  3  vols,;  1876-1877. 
Abbott's  United  States  Reports ;  U.  S.  Circuit  and  District  Courts ;  2  vols. ; 

1863-1871. 
Addison's  Reports ;  Pennsylvania  ;  1  vol.  ;  1791-1799. 
Aiken's  Reports;  Vermont;  2  vols. ;  1826-1827. 
Alabama  Reports;  53  vols.;  1840-1875. 
Allen's  Reports  ;  Massachusetts;  14  vols.;  1861-1867. 
American  Law  Times  Reports;  6  vols.;  1868-1873. 
American  Law  Times  Reports;  New  Series;  4  vols.;  1874-1877. 
Anthon's  Nisi  Prius  Cases;  New  York  ;  1  vol. ;  1808-1818. 
Arkansas  Reports;  31  vols. ;  1837-1877. 
Ashmead's  Pteports ;  Pennsylvania;  2  vols.;  1808-1841. 

Bailey's  Reports  ;  South  Carolina ;  2  vols.;  1828-1832. 

Bailey's  Equity  Reports;  South  Carolina;  1vol.;  1830-1831. 

Baldwin's  Reports;  U.  S.  3d  Circuit;  1  vol. ;  1829-1833. 

Barbour's  Reports;  New  York;  67  vols.;  1847-1877. 

Barbour's  Chancei-y  Reports;  New  York;  3  vols.  ;  1845-1848. 

Bay's  Reports;  South  Carolina;  2  vols. ;  1783-1804. 

Beasley's  Reports;  New  Jersey;  2  vols. ;  1858-1860. 

Bee's  Reports;  U.  S.  Dist.  of  South  Carolina;  1  vol.;  1792-1809. 

Benedict's  Reports;  U.  S.  Districts  of  New  York;  7  vols.;  1865-1875. 

*This  Catalogue  includos  all  American  Reports  received  in  the  Library  of  Congress  up  to 
June  18,  1878;  at  which  time  the  examination  of  the  Ileports,  with  reference  to  this  edition  of 
this  work,  was  closed.     The  list  is  believed  to  be  complete  and  accurate. 

b 


XYIU  ALPHABETICAL   CATALOGUE 

Bibb's  Reports;  Kentucky;  4  vols.;  1808-1817. 

Binney's  Reports;  Tennsylvania;  6  vols. ;  1799-1814. 

Bissell's  Reports;  U.  S.  7th  Circuit;  5  vols.;  1853-1876. 

Black's  Reports;  U.  S.  Supreme  Court;  2  vols.;  1861-1862. 

Blackford's  Reports;  Indiana;  8  vols. ;  1817-1847. 

Bland's  Chancery  Reports;  Maryland;  3  vols.;  1811-1832. 

Blatchford's  Prize  Cases;  U.  S.  Dist.  of  New  York;  1  vol.  ;  1861-1865. 

Blatchford's  Reports;  U.  S.  2d  Circuit;  13  vols.;  184.3-1876. 

Blatchford  &  Ilowland's  Reports;  U.  S.  Southern  Dist.  of  New  York;  1  vol.; 

1827-1837. 
Bond's  Reports;  U.  S.  Courts,  Ohio;  2  vols.;  1856-1871. 
Bosworth's  Reports;  New  York;  10  vols.;  1856-1864. 
Bradford's  Reports;    New  Y^ork;  4  vols. ;  1849-1857. 
Brayton's  Reports ;  Vermont;  1vol.;  1815-1819. 
Breese's  Reports;  is  vol.  1  of  Illinois  Reports. 
Brevard's  Reports;  South  Carohna;  3  vols. ;  1793-1816. 
Brewster's  Reports;  Pennsylvania;  4  vols. ;  1856-1873. 
Brightley's  Reports ;  Pennsylvania;  1vol.;  1809-1851. 
Brockenbrough's  Reports;  U.  S.  4th  Ckcuit;  2  vols.  ;  1802-1833. 
Browne's  Reports;  Pennsylvania;  2  vols. ;  1806-1814.  « 

Burnett's  Reports;  Wisconsin;  1vol.;  1842. 
Busbee's  Reports;  North  Carolina;  1vol.;  18.52-1853. 
Busbee's  Equity  Reports;  North  CaroUna;  1  vol.;  1852-1853. 
Bush's  Reports;  Kentucky;  12  vols.;  1866-1877. 

Gaines's  Cases;  New  York;  2  vols,  hi  1;  1804-1805. 

Caines's  Reports;  New  York;  3  vols. ;  1803-1805. 

California  Reports ;  51  vols.:  1850-1877. 

Call's  Reports;  Virginia;  6  vols. ;  1797-1825. 

Carolina  Law  Repository;  North  Carolina;  2  vols. ;  1813-1816. 

Chandler's  Reports;  Wisconsin;  4  vols.;  1849-1852. 

Charlton's  (T.  U.  P.)  Reports;  Georgia;  1  vol.;  1805-1810. 

Charlton's  (R.  M.)  Reports;  Georgia;  1  vol.;  1811-1837. 

Cheves's  (Law  and  Equity)  Reports;  South  Carohna;  2vols.ini;  1839-1840. 

Chipman's  (N.)  Reports;  Vermont;  1vol.;  1789-1791. 

Chipman's  (D.)  Reports;    Vermont;  2  vols.;  1789-1825. 

Cincinnati  Superior  Court  Reporter;  Ohio;  2  vols.;  1870-1873. 

Clarke's  Chancery  Reports;  New  l'"ork;  1  vol.;  1839-1841. 

Chfford's  Reports;  U.  S.  1st  Circuit;  2  vols. ;  1858-1867. 

Code  Reporter;  New  Y'ork  ;  3  vols. ;  1848-1850. 

Code  Reports;  New  York;  1  vol.;  1851-1855. 

Cold  well's  Reports;  Tennessee;  7  vols.;  1860-1870. 

Coleman's  Cases;  New  York;  1  vol. ;  1794-1800. 

*Coleman  &  Caines's  Cases;  New  York;  1  vol.;  1794-1805. 

Colorado  Reports;  2  vols.;  1864-1875. 

Coinstock's  Reports;  New  York;  4  vols.;  1847-1851. 

*  Tills  i.s  a  reprint  of  Coleman's  Cases  entire,  with  additional  cases  reported  by  Caines. 


OF    AMERICAN    REPORTS.  XIX 

Conference  Reports;  North  Carolina;  1  vol.;  1800-1804. 

Connecticut  Reports  ;  43  vols. ;  1814-1870. 

*Constitutional  Court  Reports,  by  Treadway ;  South  Carolina;  2  vols.;  1812- 

1816. 
fConstitutional  Court  Reports,  by  Mills;  South  Carolina;  2  vols  ;  1817-1818. 
Cooke's  Reports;  Tennessee;  1vol.;  1811-1814. 

Court  of  Claims  Reports;  U.  S.  Court  of  Claims;  12  vols.;  1863-1876. 
Cowen's  Reports;  New  York;  9  vols.;  1823-1829. 
Coxe's  Reports;  New  Jersey;  1vol.;  1790-1795. 

Crabbe's  Repoi'ts;  U.  S.  Eastern  Dist.  of  Pennsylvania;  1  vol.;  1836-1846. 
Cranch's  Reports;  U.  S.  Supreme  Court;  9  vols.;  1800-1815. 
Cranch's  Circuit  Court  Reports;  District  of  Columbia;  6  vols. ;  1801-1841. 
Curtis's  Reports;  U.  S.  1st  Circuit;  2  vols.;  1851-1856. 
Cushing's  Reports ;  Massachusetts;  12  vols. ;  1848-1853. 

Dallas's  Reports;  U.  S.  Supi-eme  Court,  and  Pennsylvania;  4  vols.;  1754- 

1806. 
Daly's  Reports;  New  York;  5  vols. ;  1859-1878. 
Dana's  Reports;  Kentucky;  9  vols. ;  1833-1840. 
Daveis's  Reports;  U.  S.  Dist.  of  Maine;  1  vol.;  1839-1849. 
Day's  Reports;  Connecticut;  5  vols. ;  1802-1813. 

Deady's  Reports;  U.  S.  Courts  of  Oregon  and  California;  1  vol.;  1859-1869. ' 
Delaware  Chancery  Reports;  2  vols. ;  1814-1865. 
Deuio's  Reports;  New  York;  5  vols. ;  1845-1848. 
Dessaussure's  Reports;  South  Carolina;  4  vols. ;  1784-1817. 
Devereux's  Reports;  U.  S.  Court  of  Claims;  1  vol.;  1856. 
Devereux's  Reports;  North  Carolina;  4  vols. ;  1826-1834. 
Devereux's  Equity  Reports ;  North  Carplina ;  2  vols. ;  1828-1834. 
Devereux  &  Battle's  Reports;  North  Carolina;  4  vols,  in  3;  1834-1839. 
Devereux  &  Battle's  Equity  Reports;  North  Carolina;  2  vols.;  1834-1840. 
Dillon's  Reports;  U   S.  8th  Circuit;  3  vols.;  1870-1876. 
Disney's  Reports;  Ohio;  2  vols.;  1854-1860. 
Douglass's  Reports ;  Michigan;  2  vols. ;  1843-1847. 
Dudley's  Reports;  Georgia;  1vol.;  1831-1833. 
Dudley's  Reports;  South  CaroUna;  1  voh;  1837-1838. 
Dudley's  Equity  Repoi'ts;  South  Carolina;  1  vol.;  1837-1838, 
Duer's  Reports;  New  York;  0  vols. ;  1852-1856. 
Dutcher's  Reports;  New  Jersey;  5  vols. ;  1855-1862. 
Duvall's  Reports;  Kentucky;  2  vols.;  1863-1866. 

Edmonds's  Reports;  New  York;  1  vol. ;  1834-1848. 
Edwards's  Chancery  Reports;  New  York;  4  vols. ;  1731-1850. 

Florida  Reports;  14  vols. ;  1846-1874. 

Foster's  Reports;  New  Hampshire;    11  vols.;    1850-1855.      Should  be  vols. 

21-31  of  New  Hampshire  Reports. 
Freeman's  Reports;  Mississippi;  1vol.;  1839-1843. 

*  No  Reporter's  name  given  :  generally  cited  by  the  name  of  the  publisher,  Treadwaj-. 
t  No  Keporler's  name  given :  generally  cited  by  the  name  of  the  publisher,  Mills. 


XX  ALPHABETICAL   CATALOGUE 

Gallisou's  Reports;  U.  S.  1st  Circuit;  2  vols.;  1812-1815. 

Georgia  Decisions;  1vol.;  1812-184:3. 

Georgia  Reports;  58  vols. ;  1846-1877. 

Gill's  Reports;  Maryland;  9  vols.;  184.3-1851. 

Gill  &  Johnson's  Reports;  Maryland;  10  vols. ;  1829-1843. 

Gihnan's  Reports;  are  vols.  6-10  of  Illinois  Reports. 

Gilmer's  Reports;  Virginia;  1  vol.;  1820-1821. 

Gilpin's  Reports;  U.  S.  East.  Dist.  of  Pennsylvania;  1  vol.;  1828-1836. 

Grant's  Repoi-ts;  Pennsylvania;  3  vols. ;  1852-1803. 

Grattan's  Reports;  Virginia;  28  vols. ;  1844-1877. 

Gray's  Reports;  Massachusetts;  16  vols.;  1854-1860. 

Green's  Reports;  New  Jersey;  3  vols. ;  1831-1836. 

Green's  Chancery  Reports;  New  Jersey;  3  vols.;  1838-1846. 

Green's  (C.  E.)  Reports.     See  New  Jersey  Equity  Reports. 

Greene's  (G.)  Reports;  Iowa;  3  vols. ;  1847-1852. 

Hall's  Reports;  New  York;  2  vols. ;  1828-1829. 

Halsted's  Reports;  New  Jersey;  7  vols. ;  1821-1831. 

Halsted's  Chancery  Reports;  New  Jersey;  4  vols. ;  1845-1852. 

Handy 's  Reports;  Ohio;  2  vols. ;  1854-1856. 

Hardin's  Reports;  Kentucky;  1  vol.;  1805-1808. 

Harper's  Reports;  South  Carolina;  1vol.;  1823-1824. 

Harper's  Equity  Reports;   South  Carolina;  1vol.;  1824. 

Harrington's  Reports;  Delaware;  5  vols. ;  1832-1855. 

Harrington's  Chancery  Reports;  Michigan;  1vol.;  1838-1842. 

Harris  &  Gill's  Reports;  Maryland;  2  vols.;  1826-1829. 

Harris  &  Johnson's  Reports;  Maryland;  7  vols. ;  1800-1826. 

Harris  &  McHenry's  Reports;  Maryland;  4  vols. ;  1700-1799. 

Harrison's  Reports;  New  Jersey;  4  vols. ;  1837-1842. 

Hawks's  Reports;  North  Carolina;  4  vols.;  1820-1826. 

Haywood's  Reports;  North  Carolina;  2  vols.;  1789-1806. 

Haywood's  Reports;  Tennessee;  3  vols. ;  1816-1818. 

Head's  Reports;  Tennessee;  3  vols. ;  1858-1859.  ^ 

Heiskell's  Reports;  Tennessee;  9  vols.;  1870-1876. 

Hempstead's  Reports;  Arkansas;  U.  S.  Circuit  &  District  of  Arkansas;  1  vol. ; 

1820-1856. 
Heuing  &  Munford's  Reports;  Virginia;  4  vols. ;  1806-1809. 
Hill's  Reports;  New  York;  7  vols.;  1841-1845. 
Hill's  Reports;  South  Carolina;  3  vols.;  1833-1837. 
Hill's  Chancery  Reports;  South  Carolina;  2  vols. ;  1838. 
Hilton's  Reports;  New  York;  2  vols. ;  1855-1859. 
Hoffman's  Reports;  New  York;  1vol.;  1839-1840. 
Holmes's  Reports;  U.  S.  1st  Circuit;  1vol.;  1870-1875. 
Hopkins's  Reports;  New  York;  1vol.;  1823-1826. 
Hopkinson's  Admiralty  Cases;  Pennsylvania;  1  vol.;  1785-1786. 
Houston's  Reports;  Delaware;  4  vols.;  1856-1874. 
Howard's  Cases;  New  York;  1  vol.;  1847-1848. 
Howard's  Reports;  U.  S.  Supreme  Court;  24  vols.;  1843-1860. 


OF  AMERICAN   REPORTS.  XXI 

Howard's  Reports;  Mississippi;  7  vols. ;  1834-1843. 
Howard's  Practice  Reports;  New  York;  53  vols. ;  1844-1877. 
Hughes's  Reports;  Kentucky;  1vol.;  1785-1801. 
Hughes's  Reports;  U.  S.  4th  Circuit ;  2  vols. ;  1874-1877. 
Humphrey's  Reports;  Tennessee;  11  vols.;  1839-1851. 

Idaho  Reports;  1vol.;  1866-1867. 

Illinois   Reports;   82  vols.;    1819-1876;   embracing  Breese's  Reports,  1  vol.; 

Scammon's  Reports,  4  vols.;  Gilman's  Reports,  5  vols.;  and  the  rest  styled 

Illinois  Reports. 
Indiana  Reports;  57  vols. ;  1848-1877. 
Iowa  Reports;  45  vols. ;  1855-1877. 
Iredell's  Reports;  North  Carolina;  13  vols.;  1840-18.52. 
Iredell's  Equity  Reports ;  North  CaroUua;  8  vols.;  1840-1852. 

Jefferson's  Reports;  Virginia;  1  vol.;  1730-1740;  1768-1772. 
Johnson's  Cases ;  New  York;  3  vols. ;  1799-1803. 
Johnson's  Reports;  New  York;  20  vols.;  1806-1823. 
Johnson's  Chancery  Reports;  New  York  ;  7  vols.;  1814-1823. 
Jones's  Reports ;  North  Carolina;  8  vols.;  1853-1862. 
Jones's  Equity  Reports;  North  Carolina;  6  vols. ;  1853-1860. 

Kansas  Reports;  18  vols. ;  1862-1877. 
Kentucky  Decisions  ;  1vol.;  1801-1805. 
Kernan's  Reports;  New  York;  4  vols.;  1854-1857. 
Keyes's  Reports;  New  York;  4  vols. ;  1864-1868. 
Kirby's  Reports;  Connecticut;  1  vol.;  1785-1788. 

Lalor's  Reports ;  New  York;  1vol.;  1842-1844. 

Lansing's  Reports;  New  York;  7  vols.;  1869-1873. 

Legal  Gazette  Reports;  Pennsylvania;  1  vol.  ;  1869-1872. 

Leigh's  Reports;  Virginia;  12  vols. ;  1829-1841. 

Littell's  Reports;  Kentucky;  5  vols.;  1822-1824. 

Littell's  Select  Cases;  Kentucky;  1vol.;  1795-1821. 

Louisiana  Reports ;  19  vols. ;  1830-1841. 

Louisiana  Annual  Reports;  29  vols. ;  1846-1877. 

Lowell's  Decisions;  U.  S.  Courts,  Massachusetts;  2  vols.;  1865-1877. 

Mac  Arthur's  Reports;  Dist.  of  Columbia;  2  vols.;  1873-1876. 
McAlUster's  Reports;  U.  S.  Circuit  for  CaUfornia;  1  vol.;  1855-1859. 
McCahon's  Reports;  Kansas;  1vol.;  1858-1861. 
McCarter's  Reports;  New  Jersey;  2  vols. ;  1861-1863. 
McCord's  Reports;  South  Carohna;  4  vols.;  1820-1828. 
McCord's  Chancery  Reports;  South  Carolina;  2  vols.;  1825-1827. 
McLean's  Reports;  U.  S.  7th  Circuit;  6  vols.;  1829-1854. 
Mc:\Iullan's  Reports;  South  Carolina;  2  vols.;  183-5-1842. 
McMullan's  Equity  Reports;  South  Carolina;  1  vol. ;  1810-1842. 
Maine  Reports;  60  vols.;  1820-1877. 


XXU  ALPHABETICAL  CATALOGUE 

Marshall's  (A.  K.)  Reports;  Kentucky;  3  vols.;  1S17-1821. 

Marshall's  (J.  J.)  Reports;  Kentucky;  7  vols.;  1829-1832. 

Martin's  Reports;  North  Carolina;  2  vols.;  1790-1796. 

Martin's  Reports;  Louisiana;  12  vols. ;  1809-1823. 

Martin's  Reports;  New  Series;  Louisiana;  8  vols. ;  1823-1830. 

Martin  &  Yerger's  Reports;  Tennessee;  1vol.;  1825-1828. 

Marj'land  Reports;  45  vols.;  1851-1876. 

Maryland  Chancery  Reports;  4  vols.;  1847-1854. 

Mason's  Reports;  U.  S.  1st  Circuit;  5  vols. ;  1816-18-30. 

*Massachusetts  Reports;  17  vols. ;  1804-1822;  and  vols.  97-122;  1807-1877. 

Meigs's  Reports ;  Tennessee;  1vol.;  1838-1839. 

Metcalf's  Reports;  Massachusetts;  13  vols.;  1840-1847. 

Metcalfe's  Reports;  Kentucky;  4  vols. ;  1858-1863. 

Michigan  Reports;  35  vols. ;  1847-1877. 

Miles's  Reports;  Pennsylvania;  2  vols. ;  1835-1840. 

Minnesota  Reports ;  23  vols. ;  1851-1877. 

Minor's  Reports;  Alabama;  1vol.;  1820-1826. 

fMississippi  Reports ;  vols.  23-53;  1850-1876. 

Missouri  Reports;  64  vols.;  1821-1877. 

Missouri  Appeal  Reports;  2  vols. ;  1876. 

JMonroe's  Reports;  Kentucky;  7  vols. ;  1824-1828. 

Monroe's  (B.)  Reports;  Kentucky;  18  vols.;  1840-1857. 

Montana  Reports;  2  vols. ;  1868-1877. 

Morris's  Reports;  Iowa;  1vol.;  1839-1845. 

Munford's  Reports;  Virginia;  6  vols. ;  1810-1820. 

Murphey's  Reports;  North  Carohna;  3  vols. ;  1804-1819. 

National  Bankruptcy  Register  Reports;  10  vols. ;  1867-1876. 

Nebraska  Reports ;  5  vols. ;  1877. 

Nevada  Reports;  11  vols. ;  1865-1877. 

Newberry's  Admiralty  Reports;  U.  S.  Dist.  Courts;  1  vol.;  1852-18.57. 

||New  Hampshire  Reports;  vols.  1-20,  1810-1849;  vols.  32-57,  1855-1876. 

§New  Jersey  Law  Reports;  vols.  30-39;  1863-1877. 

*  After  forty-five  years  of  publication  of  the  Reports  of  this  State  under  the  names  of  the 
Reporters,  their  publication  under  the  name  of  the  State  is  resumed.  The  complete  series  is 
as  follows:  Massachusetts,  17  vols.;  Pickering,  24  vols.;  Metcalf,  13  vols.;  Gushing,  12  vols.; 
Gray,  16  vols. ;  Allen,  14  vols. ;  Massachusetts,  vols.  97-122. 

t  The  preceding  twentj'-two  volumes  of  the  Reports  of  Mississippi  were.  Walker,  1  vol.; 
Howard,  7  vols. ;  and  Smedes  &  Marshall,  14  vols. 

t  The  cases  reported  in  2  Monroe,  being  those  decided  by  the  "New  Court," —  a  judicial 
tribunal  which  was  declared  to  be  unconstitutional,  —  are  not  regarded  as  authority  in  Ken- 
tucky. 

II  The  hiatus  in  the  numbering  of  the  New  Hampshire  Reports  is  caused  by  the  publica- 
tion of  eleven  volumes  of  the  Reports  of  that  State  under  the  title  of  "  Foster's  Reports;" 
which  should  be  vols.  21-31  of  New  Hampshire  Reports;  and  they  are  now  frequentlj-  cited 
in  that  State  under  the  latter  title,  with  the  volume  number  they  would  have  had  if  they  had 
been  published  by  that  name  in  regular  series. 

§  The  preceding  twent3'-niiie  volumes  of  New  Jersey  Law  Reports,  published  under  the 
names  of  the  Reporters,  were,  Coxe,  1  vol.;  Pennington,  2  vols.;  Southard,  2  vols.;  Hal- 
sted,  7  vols  ;  Green,  3  vols.;  Harrison,  4  vols.;  Spencer,  1  vol.;  Zabriskie,  4  vols.;  Dutcher, 
5  vols. 


or  AMERICAN   REPORTS.  xxiii 

*New  Jersey  Equity  Reports ;  vols.  16-28;  1863-1877. 

fNew  York  Reports;  vols.  15-68;  1857-1877. 

|New  York  Superior  Court  Reports;  vols.  33-43;  1871-1875. 

||New  York  Supreme  Court  Reports;  vols.  8-19;  1874-1878. 

§North  Carolina  Reports;  vols.  63-78;  1868-1878. 

North  Carolina  Term  Reports;  1  vol.;  1816-1818. 

Nott  &  McCord's  Reports;  South  Carolina;  2  vols.;  1817-1820. 

Ohio  Reports;  20  vols.;  1821-1851. 

Ohio  State  Reports;  29  vols.;  1852-1876. 

Olcott's  Reports;  U.  S.  Southern  Dist.  of  New  York;  1  vol.;  1843-1850. 

Oregon  Reports;  5  vols.;  1853-1875. 

Paige's  Chancery  Reports;  New  York;  11  vols.;  1828-1845. 
Paine's  Reports;  U.  S.  2d  Circuit;  2  vols.;  1810-1840. 
Parker's  Criminal  Reports;  New  York;  6  vols.;  1839-1868. 
Parsons's  Select  Equity  Cases;  Pennsylvania;  2  vols. ;  1841-1850. 
Patton,  Jr.,  &  Heath's  Reports;  Virginia;  2  vols.;  1855-1857. 
Peck's  Reports;  Tennessee;  1vol.;  1822-1824. 
Pennington's  Reports;  New  Jersey;  2  vols,  in  1;  1806-1813. 
Pennsylvania  Law  Journal  Reports;  5  vols. ;  1841-1873. 
T[Pennsylvania  State  Reports;  84  vols. ;  1844-1877. 

*  The  preceding  fifteen  volumes  of  New  Jersej'  Equity  Reports,  published  under  the  names 
of  the  Reporters,  were,  Saxton,  1  vol.;  Green,  3  vols. ;  Halsted,  4  vols. ;  Stockton,  3  vols. ; 
Beasley,  2  vols. ;  McCarter,  2  vols. 

t  The  preceding  fourteen  volumes  of  the  Reports  of  the  New  York  Court  of  Appeals  were, 
Comstock,  4  vols. ;  Selden,  6  vols. ;  and  Kernan,  4  vols. 

t  The  preceding  thirty-two  volumes  of  the  Reports  of  the  New  York  Superior  Court,  pub- 
lished under  the  names  of  the  Reporters,  were,  Hall,  2  vols. ;  Sandford,  5  vols. ;  Duer,  6  vols. ; 
Bosworth,  10  vols. ;  Robertson,  7  vols. ;  Sweeny,  2  vols. 

II  These  reports  are  a  continuation  of  a  series,  the  first  seven  volumes  of  which  are  Lan- 
sing's Reports. 

§  Prior  to  18G8  the  Reports  of  North  Carolina  were  mostly  published  under  the  names  of  the 
Reporters,  and  numbered,  as  originally  published,  sixty-nine  volumes:  but,  in  reprinting  and 
condensing  some  of  them,  the  number  of  separate  volumes  was  reduced  to  sixty-two;  and, 
when  the  publication  of  the  Reports  under  the  name  of  the  State  was  begun,  the  first  volume 
of  the  series  was  numbered  G3.  The  preceding  Law  Reports  were  as  follows:  Haj'wood,  2 
vols.;  Martin,  2  vols.;  Taylor,  1  vol.;  Conference  (Cameron  &  Norwood),  1  vol.;  Murphey, 
3  vols.;  Carolina  Law  Repository,  2  vols.;  North  Carolina  Term  Reports,  1  vol  ;  Hawks,  4 
vols. ;  Devereux,  4  vols.;  Devereux  &  Battle,  4  vols. ;  Iredell,  13  vols. ;  Busbee,  1  vol. ;  Jones, 
8  vols.;  Winston,  1  vol.;  Phillips,  1  vol.  Tlie  Equity  Reports  were  as  follows:  Devereux,  2 
vols.;  Devereux  &  Battle,  2  vols. ;  Iredell,  8  vols. ;  Busbee,  1  vol. ;  Jones,  0  vols.;  Winston, 
1  vol.;  Phillips,  1  vol. 

TT  Since  1844  the  Reports  of  the  Supreme  Court  of  Pennsylvania  have,  by  law  of  that  State, 
been  styled  "  Pennsylcania  Slate  Reports ;  "  but  they  are  rarely  cited  there  by  that  name, 
either  by  the  Bench  or  the  Bar;  but  usually  by  the  names  of  tlie  Reporters.  In  this  work 
they  are  cited  by  tiieir  legal  and  proper  name;  but,  for  the  information  of  those  in  other  States 
who  may  be  confused  bj'  the  citations  contained  in  the  Reports  themselves,  I  give  the  names 
of  the  Reporters,  with  the  number  of  volumes  reported  by  each,  viz.:  Barr,  vols.  1-10; 
Jones,  vols.  11,  12;  Harris,  vols.  13-24;  Casey,  vols.  25-36;  AV right,  vols.  37-50 ;  Smith,  vols. 
51-67. 


XXIV  ALPHABETICAL   CATALOGUE 

Penrose  &  Watts's  Reports;  Pennsylvania;  3  vols. ;  1829-1832. 
Peters's  Reports;  U.  S.  Supreme  Court;  1(3  vols.;  1828-1842. 
Peters's  Circuit  Court  Reports;  U.  S.  3d  Circuit;  1  vol.;  1803-1818. 
Peters's  Admiralty  Decisions ;  U.    S.  Dist.  of  Pennsylvania ;  2  vols. ;  1792- 

1807. 
Philadelphia  Reports;  Pennsylvania;  9  vols. ;  1851-lS7-i. 
Phillips's  Reports;  North  Carolina;  1vol.;  1866-1868. 
Phillips's  Equity  Reports;  North  Carolina;  1  vol.  ;  186G-1868. 
Pickering's  Reports;  Massachu-setts ;  24  vols. ;  1822-1840. 
Pinney's  Reports;  Wisconsin;  3  vols. ;  1839-18.52. 
Pittsbui'gh  Reports;  Pennsylvania;  3  vols. ;  1853-1867. 
Porter's  Reports;  Alabama;  9  vols.;  1834-1839, 

Quincy's  Reports;  Massachusetts;  1vol.;  1761-1772. 

Randolph's  Reports;  Virginia;  6  vols.;  1821-1828. 

Rawle's  Reports;  Pennsylvania;  5  vols.;  1828-1835. 

Redfield's  Reports;  New  York;  2  vols.;  1857-1877. 

Rhode  Island  Reports ;  10  vols. ;  1828-1877. 

Rice's  Reports;  South  Carolina;  1  vol.;  1838-1839. 

Rice's  Chancery  Reports ;   South  Carolina;  1vol.;  1838-1839. 

Richardson's  Reports;  South  Carolina;  15  vols.;  vols.  1-4,  1844-1847;  vols. 

5-15,  1850-1868. 
*Richardson's  Equity  Reports;  South  Carolina;  14  vols. ;  vols.  1  and  2, 1814- 

1846;  vols.  3-14, 1850-1868. 
Riley's  Reports;  South  Carolina;  1  vol.;  1836-1837. 
Riley's  Chancery  Reports;  South  Carolina;  1  vol.;  1836-1837. 
Robertson's  Reports;  New  York;  7 vols.;  1863-1868. 
Robinson's  Reports;  Louisiana;  12  vols. ;  1841-1846. 
Robinson's  Reports;  Virginia;  2  vols. ;  1842-1844. 
Rogers'sCity  Hall  Recorder;  New  York;  6  vols. ;  1816-1821. 
Root's  Reports;  Connecticut;  2  vols. ;  1789-1798. 

Sandford's  Superior  Court  Reports;  New  York;  5  vols.;  1847-1852. 

Sandford's  Chancery  Reports;  New  York;  4  vols.;  1843-1847. 

Sawyer's  Reports;  U.  S.  9th  Circuit;  4  vols.;  1870-1877. 

Saxton's  Reports;  New  Jersey;  1  vol.;  1830-1832. 

Scammon's  Reports;  4  vols. ;  are  vols.  2-5  of  Illinois  Reports. 

Seldeu's  Reports;  New  York;  5  vols. ;  1851-1854. 

Sergeant  &  Rawle's  Reports;  Pennsylvania;  17  vols. ;  1818-1829. 

Shepherd's  Select  Cases;  Alabama;  1vol.;  1861-1863. 

Smedes  &  Marshall's  Reports ;  Mississippi;  14  vols. ;  1841-1850. 

Smedes  &  Marshall's  Chancery  Reports ;  Mississippi;  1vol.;  1840-1843. 

f  Smith's  Reports;  Indiana;   1vol.;  1848-1849. 

Smith's  (E.  D.)  Reports;  New  York;  4  vols.;  18-50-1855. 

Sneed's  Reports;  Tennessee;  5 vols.;  1853-1858. 

*  Vol.  12  of  Richardson's  Equity  Reports  is  bound  up  with  vol.  1-3  of  his  Law  Reports. 
t  The  cases  reported  iu  this  volume  are  regularly  reported  in  1  Indiana  Reports. 


OF   AMERICAN   REPORTS.  XXV 

Southard's  Reports;  New  Jersey;  2  vols.;  1816-1820. 

South  Carolina  Reports;  New  Series;  6  vols. ;  1868-1876. 

Speers's  Reports;  South  Carolina;  2  vols. ;  1843-1844. 

Speers's  Equity  Reports;  South  Carolina;  1vol.;  1842-1844. 

Spencer's  Reports;  New  Jersey;  1vol.;  1842-1845. 

Sprague's  Decisions;  U.  S.  Dist.  of  Massachusetts;  2  vols.;  1841-1864. 

Stewart's  Reports;  Alabama;  3  vols.;  1827-1831. 

Stewart  &  Porter's  Reports;  Alabama;  5  vols. ;  1831-1834. 

Stockton's  Reports;  New  Jersey;  3  vols. ;  1852-1859. 

Story's  Reports;  U.  S.  1st  Circuit;  3  vols.;  1839-1845. 

Strobhart's  Reports ;  South  Carolina;  5  vols. ;  1846-1850. 

Strobhart's  Equity  Reports;  South  Carolina;  4  vols. ;  1846-1850. 

Sumner's  Reports ;  U.  S.  1st  Circuit ;  3  vols. ;   1830-1839. 

Swan's  Reports;  Tennessee;  2  vols.;  1851-1853. 

Sweeny's  Reports;  New  York;  2  vols.;  1869-1870. 

Taney's  Decisions;  U.  S.  4th  Circuit;  1  vol.;  1836-1861. 

Tappau's  Reports;  Ohio;  1vol.;  1816-1819. 

Taylor's  Reports;  North  Carolina;  2  vols.;  vol.  1,  1798-1802;  vol.  2,  1816- 

1818. 
Tennessee  Reports;  2  vols. ;   1791-1815. 
Tennessee  Chancery  Reports;  2  vols. ;   1872-1877. 
*Texas  Reports ;  47  vols.;  1846-1877. 
Texas  Court  of  Appeals  Reports;  1  vol.;   1876-1877. 
Thacher's  Criminal  Cases;  1  vol.;  1823-1843. 
Tucker's  Reports;  New  York;  1vol.;  1864-1869. 
Tyler's  Reports;  Vermont;  2  vols. ;  1800-1803. 

•fUnited  States  Reports;   U.  S.  Supreme  Court;  vols.  91-95;  1875-1877. 
Utah  Reports;  1vol.;  1850-1876. 

Van  Ness's  Prize  Cases;  U.  S.  Dist.  of  New  York;  1  vol. ;   1814. 

Vermont  Reports;  49  vols.;  1826-1877. 

Virginia  Cases;  2  vols. ;  1789-1826. 

Vroom's  Reports.     See  New  Jersey  Law  Reports. 

Walker's  Reports ;  Mississippi;  1vol.;  1818-1832. 
Walker's  Chancery  Reports;  Michigan;  1  vol.;  1842-1845. 
Wallace's  Reports;  U.  S.  3d  Circuit;  1  vol.;  1801. 
Wallace's  Reports;  U.  S.  Supreme  Court;  23  vols.;  1863-1870. 
Wallace,  Jr.'s  Reports;   U.  S.  3d  Circuit;  3  vols.;  1842-1862. 
Ware's  Reports;  U.  S.  Dist.  of  Maine;  3  vols.;  1822-1865. 

*  There  are  two  volumes  2.5  of  Texas  Reports,  tlie  second  styled  "  Supplement."  Cases 
decided  by  the  Supreme  Court  of  the  Kepublic  of  Texas  may  be  Ibund  in  Dallam's  Digest  of 
the  Laws  of  Texas,  published  in  184.5. 

t  The  preceding  Reports  of  the  Supreme  Court  of  the  United  States  were,  Dallas,  4  vols.; 
Cranch,  9  vols.;  Wheaton,  12  vols.;  Peters,  IG  vols.;  Howard,  24  vols.;  Black,  2  vols. ; 
Wallace,  2-3  vols. 


XXvi  ALPHABETICAL  CATALOGUE,  ETC. 

Washington's  Reports ;  Virginia;  2  vols. ;  1790-179G. 

Washington's  Circuit  Court  Reports;  U.  S.  3d  Circuit;  4  vols. ;   1803-1827. 

Watts's  Reports ;  Pennsylvania;  10  vols. ;  1832-184:0. 

Watts  &  Sergeant's  Reports ;  Pennsylvania;  9  vols.  ;  1841-1814. 

AVendell's  Reports;  New  York;  2G  vols. ;  1828-1841. 

West  Virginia  Reports;  10  vols. ;  1863-1877. 

Wharton's  Reports;   Pennsylvania;   6  vols. ;  1835-1841. 

Wheaton's  Reports ;   U.  S.  Supreme  Court;  12  vols. ;  1816-1827. 

Wheeler's  Criminal  Cases ;  New  York;  3  vols. ;  1776-1824. 

Winston's  Reports;  North  Carolina;  1vol.;  1863-1864. 

Winston's  Equity  Reports ;   North  Carolina;    1vol.;   1863-1864. 

AVisconsin  Reports ;  42  vols. ;    1853-1877. 

Woodbury  &  Minot's  Reports ;   U.  S.  1st  Circuit;  3  vols. ;    1845-1847. 

Woods'  Reports;    U.  S.  5th  Circuit;  2  vols.;   1870-1875. 

Woolworth's  Reports ;   U.  S.  8th  Circuit ;    1  vol. ;    1863-1869. 

Wright's  Reports ;   Ohio;   1vol.;   1831-1834. 

Wythe's  Chancery  Reports;  Virginia;   1  vol. ;    1788-1799. 

Y^ates's  Select  Cases;   New  York;    1  vol.  ;   1811. 
Y''eates's  Reports ;    Pennsylvania;   4  vols. ;    1791-1808. 
Yerger's  Reports ;  Tennessee;   10  vols. ;  1832-1837. 

Zabriskie's  Reports ;  New  Jersey;  4  vols. ;   1847-1855. 


INDEX   TO  CASES    CITED. 


The  References  are  to  the  Sections. 


Section 

Abbott  V.  Sheppard  449 

V.  Warriner  405 

Accessory  Transit  Co.  v.  McCer- 

ren  176,  732 

Ackroyd  v.  Ackroyd  34 

Adams  v.  Avery  546,  588,  700 

V.  Balch  304 

V.  Barrett     463,  497,  506,  541 

V.  Cordis  665 

V.  Filer  706 

V.  Fox  392 

V.  Lane  508 

V.  jSTewell  246 

V.  Paio-e  277 

V.  Robinson  216,  528,  610 

V.  Scott  518 

V.  Tyler  516 

Adlum  V.  Yard  654,  655 

Albany  City  Ins.  Co.  v.  Whitney     317 

A]bee\\  Webster  199 

Aldrioh  v.  Brooks  550 

V.  Kinney  87  a 

V.  Woodcock 

Alexander  v.  Brown 

V.  Haden 

V.  Harrison 


453 

418 

108 

733,  734,  743 

V.  Hutchison  174 

V.  Jacoby    162  a,  163,  175, 

176,  726 

V.  Pardue  115 

Alford  V.  Johnson  133 

Allard  v.  De  Brot  698 

Allegheny  Savings  Bank  v.  Meyer 

659,  665 

Allen  V.  Brown  95 

V.  Butler  381 

V.  Carty  374 


Section 

Allen  V.  Doyle  310,  344,  372 

V.  Erie  City  Bank  481 

V.  Fleming  108 

V.  Hall   536,  659,  660,  667,  685, 

690 

V.  McCalla  255  a 

V.  Megguire  536 

V.  Morgan  583,  659 

V.  Watt  710 

Alley  V.  Myers  262,  658  a 

Alston  V.  Clay  251,  509 

V.  Newcomer  65 

American  Bank  v.  Rollins  619 

V.  Snow  625 

American  Ex.  Bank  v.  Morris  C. 

&  B.  Co.  221,  229 

Amos  V.  Allniitt  126 

Amoskeag  Man.  Co.  v.  Gibbs  588 

Anderson  v.  Coburn       112,  446  a,  448 

V.  Doak  245 

15.  Graff  204,  658  e 

V.  O'Reilly  75 

V.  Scott  207 

V.  Wanzer  565 

V.  Young  706 

Andre  v.  Fitzhugh  325 

Andrews  v.  Herring  630 


V.  Ludlow   481,  482,  483,  539 


Angier  v.  Ash 
Anthony  v.  Comstock 
Archer  v.  Claflin 
V.  Noble 
Arendale  v.  Morgan 
Argyle  v.  Dwinel 
Arledge  v.  White 
Armor  v.  Cockburn 
Armstrong  v.  Blodgett 
Arnold  v.  Brown 
Arrington  v.  Screws 


225 

345,  386 

106,  406 

196 

89"a 

241 

455,  543,  683 

517 

407 

222 

247 


XXVlll 


INDEX   TO   CASES   CITED. 


Artliur  v.  Ratte 
Asliby  V.  Watson 
Ashmun  r.  Williams 
Atclie.son  r.  Smith 
Atkins  V.  Kinnan 
V.  Prescott 
Atkinson  v.  Foxworth 
Atlantic  F.  &  M.  Ins 

son 
Atlantic  ]\Iut.  Ins.  Co 
Atlas  Bank  v.  Nahant 
Austin  V.  Bodley 
V.  Burgett 
V.  Burlington 
V.  Latham 
V.  W^ade 
Auter  V.  Steamboat  J, 
Averill  v.  Tucker 
Avet  V.  Albo 
Aver  V.  Jameson 
Ayres  v.  Husted 


Section 

454,  619 

637,  08;^ 

250 

696,  697,  711 

87  b 

561,  562,  570 

331),  341,  741 

Co.  V.  Wil- 

658  e 

V.  McLoon     27 

Bank  231 

5 

37  a,  227,  331 

285,  344 

94 

2-22 

105 

512 

332 

374 

275 


Jacobs 


B. 


Babb  V.  Elliott 
Babcock  v.  Malbie 
Bach  V.  Goodrich 
Bacon  v.  Daniels 
V.  Leonard 
V.  Thorp 
Badlam  v.  Tucker 
Bagley  v.  Ward 
V.  White 
Bailey  v.  Adams 
V.  Beadles 


V.  Hall 
V.  Lacey 
V.  Ross 
Baillio  V.  Poisset 
Bainbridge  v.  Alderson 
Baird  v.  Rice 

V.  Williams 
Baker  v.  Fuller 
V.  Hunt 
V.  Moody 
V.  Warren 
Balderston  v.  Manro 
Baldwin  v.  Conger 
V.  Jackson 
i\  Leftwich 
V.  Morrill 

Ball  V.  Citizens'  Nat.  Bank  679 

V.  Claflin  262,  273,  285 

V.  Gardner  152 

V.  Gilbert  520 

V.  Liney  185  c 

Balliet  i:  Scott  594,  614 


247 

245 

224 

323,  381 

237 

373 

245,  291,  371,  539 

221,  224  a 

271,  292  b 

198 

95 

307 

465  a 

454  a,  536 

223 

62 

216 

280 

351,  353,  372,  380 

93 

525,  659 

292  a,  353,  357 

527 

205,  415 

290,  292  a,  358 

229 

673 


Section 
Ballinger  v.  Lantier  64 

Ballston  Spa  Bank  v.  Marine  Bank 

465  a 
Baltimore  v.  Root  516 

Baltimore  &Ohio  R.  R.  Co.  v.  Gal- 

lahue       409,  472,  479,  551,  559,  655 
Baltimore    &   Ohio   R.   R.   Co.  v. 


McCullough 
B;iltimore   &   Ohio 

May 
Baltimore    &   Ohio 

Wheeler 
Bancker  v.  Brady 
Bancroft  v.  Sinclair 
Bank  v.  Levy 
Bank  of  Alabama  v. 


R.  R.   Co. 


553 


705,  706 


R.  R.   Co.  V. 


517 

246 

204 

534 

Berry  .    107 

V.  Fitzpatrick      115, 

124 

Bank  of  Augusta  v.  Conrey    122,  134, 

415 
V.  Jaudon     262,  273 
Bank  of  Chester  v.  Ralston  498 

Bank  of  Fayetteville  v.  Spurling  274 
Bank  of  North  America  v.  McCall  529 
Bank    of    Northern    Liberties    v. 

Munford  _        _  697 

Bank    of    Northern     Liberties    v, 

Jones  491,  491  a 

Bank  of  St.  Mary  v.  Morton  607 

Bank  of  the  State  of  Missouri  v. 

Bredow  453,  453  a 

Bank  of  Tennessee  v.  Dibrell  246, 

516  a 

Banning  v.  Sibley  659 

Bannister  v.  Higginson  207,  219 

Banta  v.  Reynolds  117,  185 

Barber  v.  Robeson  25 

Barkeloo  ?7.  Randall  118 

Barker  v.  Esty  547,  548 

V.  Miller  291,  349 

V.  Taber  652 

Barksdale  v.  Hendree  87  b 

Barnard  v.  Graves  487,  514,  674  d 

V.  Moore  539 

V.  Sebre  101 

Barnes  v.  Buck  27 

V.  Treat  499 

V.  W^ayland  653,  654,  055 

V.  Webster  151,  327  a 

Barnet's  Case  60,  62 

Barnett  v.  Weaver  499 

Barney  v.  Douglass  588 

Barr  v.  Perry  696 

Barrett  v.  Spa'ids  732  a 

V.  White  194 

Barron  v.  Cobleigh  363,  391,  392 

Barrow  v.  West  706 

Barry  v.  Bockover  67 


INDEX   TO    CASES   CITED. 


XXIX 


Section 

Barry  v.  Fisher 

570 

V.  Foyles 

318 

V.  Hoiian 

658  c 

Bartlett  v.  Wood 

550 

Barton  v.  Albright 

707 

V.  Smith 

711 

Bassett  v.  Garth waite 

588 

Batchehler  v.  Frank 

SU 

Bates  V.  Jenkins 

405 

V.  New  Orleans,   &c. 

R.  R. 

Co. 

474,  551 

V.  Robinson 

91 

Battles  j;.  Simmons 

640 

Bauer  v.  Antoine 

318 

Baugh  V.  Kirkpatrick 

453  rt 

Baune  v.  Thoniassin 

10 

Bausman  v.  Smith 

21 

Baxter  v.  Currier 

465 

V.  Rice 

208 

V.  Vincent 

474,  707 

Bayley  v.  Bryant 

281 

Baylies  v.  Jloughton 

581 

Beach  v.  Abbott                351 

,  353,  382 

V.  Sclimultz 

199 

V.  Viles 

683 

Beal  V.  Alexander             321 

,  322,  323 

Bean  v.  Barney 

658  a 

V.  Bean 

487,  659 

V.  Hubbard 

195 

V.  Miss.  Union  Bank 

667 

r.  Parker 

336 

Beardslee  v.  Morgan 

147 

Bebb  V.  Preston 

659 

Beck  r.  Brady 

229 

Beckwith  v.  Baxter 

499 

V.  Sibley 

35 

Beech  v.  Abbott 

437,  448 

Beecher  v.  James 

144 

Beekman  v.  Lansing 

255  a 

Beers  v.  Arkansas 

616  a 

V.  Place 

267 

Behrens  v.  McKenzie 

176 

Belcher  v.  Grubb 

624 

Belknap  v.  Gibbens 

543 

Bell  V.  J)ouglass 

252 

V.  Hall 

113 

V.  Jones 

639 

V.  KenchMck 

647 

Bellows  &  Peck's  Case 

425 

Benedict  v.  Bray 

115,  150 

Bennett  v.  Avant 

48,  108 

V.  Brown          121  a, 

152,  176, 

308 

Benson  v.  Berry 

267 

V.  Campbell 

27  a 

V.  McCoy 

726 

Bentley  v.  (ioodwin 

225 

V.  Shrieve 

509  a 

Benton  i'.  Lindell 
V.  Roberts 
Bergh  v.  Jayne 
Bernal  v.  Hovious 
Berry  v.  Anderson 

V.  Harris 

V.  Spear 
Bethune  v.  Gibson 
Bibb  V.  Smith 
Bickerstaff  v.  Patterson 
Bickford  v.  Rice 
Bicknell  v.  Hill 

V.  Trickey 
Bigelow  V.  Andress 
V.  Willson 
Biggs  V.  Blue 

V.  Kouns 
Bildersee  v.  Aden 

Bimeler  v.  Dawson 
Bingham  v.  Lamping 
V.  Rushing 
V.  Smith 
Birdsong  v.  McLaren 
Bishop  V.  Fennerty 

V.  Holcombe 

V.  Warner 

V.  Young 
Bissell  V.  Huntington 


V.  Nooney 
V.  Strong 
Bivens  v.  Harper 
Black  V.  Paul 

V.  Scanlon 
V.  Zacharie 
Blackburn  v.  Davidson 
Blackwood  v.  Jones 
Blair  V.  Cantey 
V.  Rhodes 
Blaisdell  v.  Ladd 
Blake  v.  Camp 
V.  Hatch 
V.  Kiml)all 
V.  Shaw 
V.  Williams 
Blakley  v.  Bird 
Blanchard  o.  Cole 

V.  Coolidge 
V.  (iroussett 
V.  Vargas 
Blaney  v.  Findley 
Hiatchley  v.  Adair 
Bleven  v.  Freer 
Bliss,  Tn  re 

V.  Heasty 
V.  Smith 
V.  Stevens 


Section 
678 
321 
94,  106 
248 
696 
671 
219 
221,  255,  263 
599 
207 
704 
359,  373 
258 
225,  453,  454 
222 
90 
453 
313  a,  319,  323, 
341  h 
85 
482 
545 
619,  620 
91,  137 
101, 112 
608 
192 
651 
365,  379,  395, 
427 
265 
465 
494 
614,  653 
104  a 
30 
550 
112 
251,  506 
550,  658  a 
276,  453,  543 
416 


256 

374 

222,  426 

597 

96 

684 

246 

28 

653 

120 

339 

392 

87, 100 

6,  162  a,  437,  449  a 

451  «,  659 

374 


XXX 


INDEX   TO   CASES    CITED. 


Blodgett  r.  Gardiner 

Bloom  V.  Burdick 

Blyler  v.  Kline 

Boardinan  v.  Bickiord 
V.  Gushing 
V.  Roe 


Bodct  V.  Nibourel  139 

Bogart  V.  Phelps  185,  185  a 

Boggs  V.  Bindskoff  65 

V.  Hargrave  89  a 

Bond  V.  Greenwald  322  6 

V.  Padellbrd    349,  351,  353,  367, 
3G8 
V.  Patterson  90 

V.  Ward         189,  199,  250.  253  a 
Bonner  v.  Brown       112,  127,  144,  414 
V.  Martin  658/ 

Boon  V.  Maul  732,  735 

Boone  v.  Savage  95 

Boone  County  v.  Keck  516 

Booth  V.  Kees  113,  185 

Borden  v.  Fitch  87  a 

Borders  v.  ]\[urphy  5 

Born  V.  Staaden  630,  579 

Bosbyshell  v.  Emanuel  93,  102 

Boston,  C,  &  M.  R.  R.  Co.  v.  Gil- 
more  252  a 
Boston     &    Maine     Railroad     v. 

Oliver  685 

Boston  Type  Co.  ».  Mortimer  685 

BostwickV  Beach  460,  658  b 

Boswell  V.  Otis  5,  85 

Bottom  V.  Clarke  451  a 

Bourne  v.  Hocker  139,  230 

V.  Merritt  244  a 

Bowden  v.  Schatzell  509 

Bowen  v.  First  Nat.  Bank  80 

V.  Slocum  103 

Bowker  v.  Hill  424,  465  a,  481 

Bowley  V.  Angire  381 

Bowman  v.  Stark  219 

Boyd  V.  Bayless  643 

V.  Boyd  121 

V.  Buckingham  107,  331 

V.  C.  &  O.  Canal  Co.  469 

V.  King  205 

V.  INIartin  163 

Boyes  v.  Coppinger  401 

Boyle  V.  Franklin  Fire  Ins.  Co.        549 

Boynton  v.  'Warren  290,  300 

Brackett  v.  Blake  667 

Bradbury  v.  Taylor  372 

Bradford  v.  Giliaspie  249 

V.  McLellan  253  a 

V.  Mills  478 

Bradley  v.  Arnold  248 

V.  Obear  246 


Section 

Section 

664,  665 

Bradley  ?'.  Richmond 

516 

85,  87  b 

Brainard  v.  Burton 

212 

332 

V.  Bu.-hiu'll 

265 

51,  60 

V.  Sliannon 

634 

685 

Braley  v.  Byrnes 

185  a 

54S,  646,  647 

V.  Clark 

340 

t?.  Riley   244  a 

11.  French 

240,  291 

Branch  Kank  v.  Poe   472,  557,  667,  668 

Branch  of  State  Bank  v.  Morris     148  a 

Brandon  v.  Allen  173  a 

Brandon  Iron  Co.  v.  Gleason  262 

Jirainion  v.  Noble  708 

Branson  v.  Shinn  402 

Brash  v.  Wiclarsky  90 

Brashear  v.  West  251,  453 

Brauser  v.  New  England  F.  I.  Co.    478 

Bray  v.  McChiry  6,  88 

V.  Wallingford  616 

V.  Wheeler  694 

Braynard  v.  Burpee  697 

Brazier  v.  Chappell  528 

Breading  v.  Sicgworth           .  662,  707 

Brealsford  v.  Meade  561 

Bretney  v.  Jones  144 

Bridge  v.  Bracken  85 

V.  Ford  85 

V.  Wyman  367 

Bridges  y.  North  683,659 

V.  Perry  292 

V.  Williams  94 

Brigden  v.  Gill        454,  463,  487,  489, 

541 

Briggs  V.  Block  487,  514,  625 

V.  French  289 

V.  Gleason  203 

V.  Mason  210  b,  363 

V.  Strange  252  a 

V.  Taylor  292,  301,  307 

Brigham  v.  Avery  245 

Brinegar  v.  Griffin  34 

Briscoe  v.  Bank  516  a 

Briit  V.  Bradshaw  653 

Britton  V.  Preston  688 

Broadhead  v.  McConnell  87  a 

Brode  v.  Firemen's  Ins.  Co.  697 

Brook  V.  Smith  700 

Brooks  V.  Adams  85 

V.  Cook  494,  496 

V.  Hildreth  626 

V.  Stone  225 

Bi'otherton  v.  Anderson  636 

V.  Thomson  334 

Brower  v.  Smith  244  c 

Brown,  Matter  of  100 

V.  Ainsworth  418 

V.  Ashbough  61 

V.  Atwell  381 

V.  Brown  689  a 


LNDEX   TO    CASES   CITED. 


XXXI 


Section 

Brown  v.  Cook 

349 

V.  Crockett 

396 

V.  Davis 

204, 

210,  463 

V.  Dudley 
V.  Foster 

707,  710 
525 

V.  Harris 

413 

V.  Heath 

246,  480 

V.  Hincliman 

99 

V.  McCluskey 

87,  108 

V.  Massey 
V.  Kichardson 

899 
81 

V.  Richmond 

304 

V.  Ridgway 

V.  Scott 

420 
254 

V.  Silsby 

659, 

660,  664 

I'.  Slate 

583,  659 

V.  Somerville 

700 

708,  711 

V.  Warren 

683,  684 

I'.  Whiteford 

140 

V.  Williams 

221 

Brownell  v.  Carnley 

245 

V.  Manchester  291,  292  d, 

349,  367,  371 

Bruce  v.  Cloutman  449 

V.  Coleman     154,  156,  159,  164, 

166 

V.  Cook  87,  696 

V.  Holden  210,  271,  290 

V.  Pettengill  208,  346,  363 

Brumgard  v.  Anderson  408 

Brundred  v.  Del  Hoyo  65 

Bryan  v.  Dunseth  67 

V.  Lashley  453 

V.  Smith  85 

Bryant  v.  Fussel  81 

V.  Osgood  208,  256,  258  a 

Buchanan  v.  Alexander  512 

Buck  i".  IngersoU  35 

Buckley  v.  Lowry  87 

Buckman  v.  Buckman  275 

Buckmaster  v.  Smith  246 

Buddington  v.  Stewart  248 

Butfham  v.  Racine  516 

ButHiigton  V.  Gerrish  246 

Buffum  V.  Seaver  425 

Buford  V.  Wclborn  650 

Bulfincli  V.  Wnu'henbach  568 

Bulkley  V.  Eckert  493,  512 

Bullard  v.  Hicks  660 

V.  Randall  611 

Bullitt  V.  Winston  216 

Bump  V.  Betts  729,  732 

Bunker  v.  Gilmore  607,  717 

Bunn  V.  Pritchard  113 

Burcalow  v.  Trump  67 

Burch  V.  Watts  336  a,  419 

Burgess  v.  Clark  52 

V.  Stitt  92 


Section 

Burke  v.  Whitcomb  551,  578 

Burkhardt  v.  McClellan    221,  236,  263 

Burlingame  v.  Bell    251,  267,  270,  453 

Burlock  V.  Taylor  605 

Burnap  v.  Campbell  711 

Burnham  v.  Beal  487 

V.  Folsom  618 

V.  Fond  du  Lac  516 

V.  Hopkinson  457 

Burnell  v.  Weld  570 

Burnside  v.  McKinley  517,  526 

Burrell  v.  Letson        251,  482,  506,  625 

Burrill  v.  Jewett  65 

Burroughs  v.  Wright  267 

Burrows  v.  Glover  604 

V.  Lehndorff  173,  730  a 

V.  Miller  61 

V.  Stoddard  282,  367 

Bursley  v.  Hamilton  392 

Burt  V.  Parish  112,  144 

V.  Perkins  389 

Burton  v.  District  Township         658  c, 

660,  713 

V.  Knapp  170  a 

V.  Smith  176 

V.  Wilkinson  186,  200 

V.  Wynne  588 

Bushel  V.  Commonwealth  Ins.  Co.     79 

Buswell  r.  Davis  289 

Butler  V.  Borders  196 

Butterfield  v.  Baker  246 

V.  Clemence  297 

V.  Converse  384 

Byars  v.  Griffin  609 

Byrd  v.  Hopkins  416 


c. 

Cadvvalader  v.  Hartley 

Cadwell  v.  Colgate 

Cady  V.  Comey 

Cahill  V.  Bigt'low 

Cahoon  v.  Ellis 

V.  Morgan 

Caignett  v.  Gilbaud 

Cain  ?).  Mather 

Cairo  &  St.  L.  R.  R.  Co 
lenberg 

Calahan  v.  Babcock 

Caldwell  v.  Arnold 
V.  Coates 
V.  Stewart 
V.  Townsend 

Calhoun  v.  Cozzens 
V.  ^V^are 

Calkins  v.  Lockwood 

Callagan  v.  Pocasset  Man 


579,  588 

87,  106,  319 

501 

595,  612 

655 

451  b 

566 

36 

.  V.  Kil- 

604,  659 

245 

196 

461,  545 

452 

460 

11,  415 

437 

222 

,  Co.         594 


xxxu 


INDEX   TO   CASES   CITED. 


Callalian  v.  Ilallowill 
Callender  v.  Duncan 
V.  Fuibisli 
Camberford  v.  Hall 


Section 

263,  472 

140 

539,  643 

116,  143,  262, 

273,  697 

Camden  v.  AlltMi  684  a 

Cameron  v.  Stollenwerck  707 

Caminack  *'.  Floyd  526 

Cannnann  v.  Tompkins  400 

Camp  V.  Chamberlain  255  a 

V.  Clark  599 

V.  Wood  85 

Campbell  v.  Chamberlain  175 

V.  Johnson  249 

V.  Morris  403 

V.  Roger  263 

V.  Wilson  111 

Canada  v.  Southwiek  294,  389 

Canal  Co.  v.  Insurance  Co.  527 

Candee  v.  Skinner  665 

V.  Webster  665 

Canfield  v.  McLaughlin  837 

Cannon  v.  Logan  102 

V.  McManus  406,  409 

Caperton  v.  MeCorkle  429 

Cardany  v.  N.  E.  Furniture  Co.       659 

CargiU  V.  Webb  379,  380 

Cariand  v.  Cunningham  14 

Carleton  v.  Washington  Ins.  Co.   5,  449 

Carlton  v.  Davis  199 

Carpenter  v.  Pridgen  102 

V.  Snell  373,  374 

V.  Stevenson  178 

V.  Turrell  323  b 

Carr  v.  Coopwood  414 

V.  Farley  352,  388 

V.  Waugh  604 

Carrington  v.  Didier  81 

V.  Smith  292  e,  360 

Carrique  v.  Sidebottom  635,  650 

Carroll  v.  Finiey  655 

V.  ]\LcDonogh  701 

Carson  v.  Allen  688 

V.  Carson  246 

Carter  v.  Champion  239 

V.  Gregory  278,  279 

Carver  v.  Braintree  Man.  Co.  12 

Cary  v.  Gregg  224 

Case  V.  Moure  460,  658  a 

Casey  v.  Davis  514,  717 

Cason  V.  Cason  89  b 

Castle  ('.  Bader  225 

Catlin  V.  Lowrey      '  395 

Cayce  v.  Ragsdale  409 

Center  i'.  McQuesten  525 

Central  Bank  v.  Prentice  539 

Central  Plank  Kuad  Co.   v.  Sam- 

raons  465  a 


Section 
Chadbourne  v.  Sumner    204,  210,  256, 

271,  290 

Chaine  v.  Wilson  67 

Chamberlain  v.  Beller  189,  253  a 

V.  Faris  5 

Chambers  v.  McKee  697 

V.  Sloan  107 

V.  Yarnell  658  a 

Chandler  v.  Dyer  224,  239 

V.  Faulkner  705 

V.  Nash  85 

V.  Thurston  246 

Chapin  v.  Conn.  R.  R.  Co.  489 

V.  Jackson  517 

Chapman  v.  Clough  35 

V.  Smith  294 

V.  Williams  465 

Chariton  County  v.  Moberly  57 

Chase  v.  Elkins  246 

V.  Foster  658  e 

V.  llaughton  688 

V.  Manhardt  665 

Chatzel  v.  Bolton  670 

Chea.lle  v.  Riddle  92 

Cheairs  v.  Slaten  706 

Chealy  V.  Brewer  493,  512 

Cheatham  v.  Carrington  81 

V.  Trotter  652 

Cheddick  v.  Marsh  25 

Chemung  Bank  v.  Judson  87  a 

Chenault  v.  Cliapron  409 

Cheongvvo  v.  Jones  700,  708 

Cherry  v.  Hooper  550 

Cheshire  Nat.  Bank  v.  Jewett  249 

Childress  v.  Dickins  556,  652 

V.  Fowler  312,  318 

Childs  V.  Barrows  214,  220 

V.  Digby  484 

t).  Ham  209,  296 

Chipman,  Matter  of  60,  400 

Chittenden  v.  Hobbs  37  a 

Chouteau  v.  Sherman  72 

Chrisman  v.  Rogers  324 

Christie  v.  Unwin  85 

Christmas  v.  Biddle  480 

Church  V.  Knox  669 

V.  Simpson  659 

Churchill  V.  Abraham        154,  166,  174 

V.  FuUiam  136 

Cilley  V.  Jenness  294,  300 

Citizens'  Bank  v.  Payne  451  b 

City  Bank  v.  INIerrit  402 

Claliin  v.  Iowa  City  470 

Claiiton  V.  Laird  132,  416 

Clapp  V.  Bell  228,  413 

I'.  Davis  616  b 

V.  Hancock  Bank  464,  557 

V.  Rojiers  453 


Clapp  V.  Thomas 
Clark,  Matter  of 
V.  Arnold 
V.  Averill 
V.  Boggs 
V.  Brewer 
V.  Brown 
V.  Bryan 
r.  Chapman 
V.  Cilley 
V.  Clark 
V.  Clough 
r.  Foxcroft 
V.  Gaylord 
V.  Gibson 


Section 

195,  244  a 

445,  448 

46 

480 

510 

518 

464 

317,  322,  448 

470 

525 

493,  546 

347 

283,  288 

388,  389 

520 


V.  Great  Barrington        512,  703 

V.  Holliday  5 

V.  King  550,  575 

V.  Lvnch  246 

V.  Mobile  School  Com'rs        516 

V.  Morse  94,  369 

V.  Powell  665 

V.  Pratt  61 

V.  Roberts  87 

V.  Viles  481 

V.  Ward  64 

V.  AVilson  24,  415 

Clarke  v.  Farnum  457 

V.  Gary  204 

V.  Meixsell  696 

Clay  V.  Neilson  207 

V.  Scott  263 

Clement  v.  Clement  551 

Clements  v.  Cassilly  336 

Cleneay  v.  Junction  R.  R.  Co.        588, 

674  a 

Cleveland  v.  Clap  634,  656 

V.  Rogers  85 

Cleverly  v.  Braekett  35 

Clise  V.  Freeborne  700 

Clodfelter  v.  Cox  607,  625 

Closson  V.  Morrison  193,  252 

Cloud  V.  Smith  399 

Clough  V.  Buck  588 

Clymer  v.  Willis  251,  506 

Clymore  v.  Williams  5,  204 

Coates  V.  Roberts  706,  714,  722 

Cobb  V.  Bishop  545 

V.  Force  106 

V.  O'Neal  420 

Coble  V.  Nonemaker  543,  6G0 

Coburn  v.  Aiisart  494,  515 

V.  Currens  708 

V.  Hartford  559 

Cochran  v.  Fitch  5,  706 

Cockey  v.  Leister  509  a 

V.  Milne's  Lessee  221 

Cockrell  v.  McGraw  419 


\SES    CITED. 

XXXUl 

Section 

Coddington  v.  Gilbert 

244  c 

Coe  V.  Rocha 

659 

V.  Wilson 

246 

Cofield  V.  Tilton 

282  a 

Cogswell  V.  INlason 

242 

Cohen  v.  Manoo 

87,  91 

V.  St.  Louis  P.  I.  Co. 

665 

Colby  V.  Coales 

494,  511 

Colcord  V.  Daggett 

586,  589 

Cole  V.  Dugger 

216 

V.  Parker 

188 

V.  Wooster 

262,  508 

Coleman's  Appeal 

5,  10 

Coleman  v.  Bean 

323 

Collins  V.  Brigham 

517 

V.  Dulfy 

422 

V.  Friend 

460 

V.  Mitchell 

342 

V.  Nichols 

406 

V.  Perkins  194  a,  203 

V.  Smith  291,  374 

Colson  V.  W^ilson  244  a 

Colt  V.  Ives  528 

Colvin  V.  Rich  576,  579,  607,  717 

Colwell  V.  Bank  of  Steubenville       446 

V.  Richards  353,  374 

Commercial  Bank  v.  Neally  498 

V.  Ullman     102,  107 

Commissioners  v.  Fox  588 

V.  Thompson      85,  89  b 

Commonwealth  v.  Manley  247 

V.  Morse  349,  367 

V.  Stockton  196 

Comstock  V.  Farnum         650,  575,  652 

V.  Paie  641 

Conant  v.  Bicknell  251,  506 

Congdon  v.  Cooper  298 

Conklin  v.  Goldsmith  132 

V.  Harris  66,  144,  148 

Conley  v.  Chilcote  674  a 

Conn  V.  Caldwell  290 

Connelly  v.  Harrison  525 

Connoley  v.  Cheeseborough      583,  659 

Conrad  v.  McGee     54,  87,  88,  90,  102 

Conway  v.  Armington  496 

V.  Butcher  224 

V.  Cutting  610 

Cook  V.  Boyd  314 

V.  Dillon  .  490 

V.  Field  708,  710,  716,  722 

V.  Hopper  185  a 

V.  Jenkins  91 

V.  Walthall  541,  545 

Cooke  V.  State  Nat.  Bank  80 

Cooper  V.  Hill  170 

V.  McClnn  706 

V.  Mowry  362 

V.  Newman  195,  256 


XXXIV 


INDEX   TO   CASES   CITED. 


Cooper  V.  Peek 

V.  Reeves 

r.  Rovuolds 

V.  Smith 

V.  Sumlorland 
Cope  V.  U.  M.  IM.  &  P.  Co. 
Copeland  V.  Weld 
Corbjn  V.  Bollinan 
Corey  v.  Powers 
Cornwall  v.  Gould 
Cornwell  v.  Ilungate 
Corwiii  V.  Merritt 
Coston  V.  Paige 
Cota  V.  Misliow 
Cotton  V.  Huey 
Cottrell  V.  Varnum 
Courier  r.  Cleghorn 
Courtney  v.  Carr 
Cousins  V.  Brashear 
Covert  V.  Nelson 
Cowles  V.  Coe 
Cowperthwaite  v.  Sheffield 
Cox  V.  Miliier 
V.  Peinhardt 
V.  Robinson 
V.  Thomas 
Crabb  v.  Jones 
Grain  r.  Gould 
Crane  v.  Freese 
V.  Lewis 
Crary  v.  Barber 
Crawford  v.  Clute 
V.  Foste 
V.  Slade 
Cray  ton  v.  Clarke 
Creagh  v.  Delane 
Creps  V.  Baird 
Crisman  v.  Matthews 

V.  Swisher 
Crizer  v.  Gorrin 
Crocker  v.  Pierce 

15.  Radcliffe 


Section 

840 

415 

5,  87,  448 

91,  449 

85,  89  b 

95,  418 

481 

510, 648 

464 

35 

697,  715 

85,  87  b 

98,  408 

689  a 

187 

557 

87  a 

187  a,  235 

119 

575,  7U8 

523 

611 

234 

33 

158,  170,  175,  738 

85 

620,  624 

517,  633,  682  «,  687 

251,  505,  506 

19 

112 

701,  705 

336 

701,  705 

576,  607,  608,  717 

111 

89  a 

339 

205 

205 

222,  234 

221,  222,  255, 


263,  422 

Crosby  r.  Allyn  236,  237,  241 

V.  Hetlierington  473 

Cross  V.  Brown  370,  878,  385,  395 

V.  Haldeman  576 

V.  McMaken  107 

V.  Phelps  185,  185  a 

V.  Richardson  19,  96 

Grossman  v.  Grossman      644,  651,  655 


Crouch  V.  Grouch 
Crowell  V.  Johnson 
Crowninshield  v.  Strobel 

Croxall  V.  Hutchings 
Crozier  v.  Shants 
Cruyt  V.  Phillips 


113 

448 

221,  231, 

255,  268 

57,  108 

607 

319 


Culbertson  v.  Cabeen 
Culver  V.  Parish 
Cunuiiings  v.  Garvin 
Cummins  v.  Gray 
Curiae  v.  Packard 
Curie  V.  St.  Louis  P.  I.  Co 
Curling  v.  Hyde 
Curry  v.  Glass 

V.  Woodward 
Curtis  V.  Norris 

V.  Raymond 

V.  Settle 
Gushing  v.  I>aird 
Cushman  v.  Haynes 
Cutler  V.  Baker 
Cutter  V.  Perkins 
Cutters  V.  Baker 


Section 

101,  102,  788 

589 

499 

333 

314  a 

614 

497 

225 

451  c,  565  a 

617,  533 

589 

107 

654 

625 

711 

552,  680  a 

617 


D. 

Daily  v.  Jordan 
Dakin  v.  Hudson 
Daley  v.  Cunningham 
Dame  v.  Fales 
Damon  v.  Bryant 
Danaher  v.  Prentiss 
Dandridge  v.  Stevens 
Danlorth  v.  Garter 
V.  Penny 
V.  Rupert 
Daniel  v.  Rawlings 
Daniels  v.  Clark 

V,  Meinhard 
V.  Willard 
Danielson  v.  Andrews 
D'Arcy  v,  Ketchum 
Davenport  v.  Lacon 
V.  Swan 
V.  Tilton 
Davidson  v.  Clayland 
V.  Cowan 
V.  Donovan 
V.  Kuhn 
V.  Owens 
Davis  V.  Commonwealth 
V.  Connelly 
V.  Davis 
V.  Drew 
V.  Edwards 
V.  Eppinger 
V.  Garret 
V.  Ham 
V.  Knapp 
V.  Marshall 
V.  Marston 
V.  Miller  844, 

V.  Oaklord 


667 

85 

509,  626 

187  b 

185  a 

680  a,  658  e 

107 

33,  136,  428 

478 

428 

589 

452 

470 

605 

284 

5 

224 

480,  667 

422,  425 

261,  608 

219 

470 

261 

27 

162 

85,  87  a 

268,  498,  669 

502 

101,  108 

276 

244 

661,662 

658 

115 

490 

853,  872,  878 

650 


INDEX   TO   CASES    CITED. 


XXXV 


Section 

Davis  V.  Pawlette 

583, 

588, 

659 

V.  Stone 

200 

V.  Taylor 

527 

Dawkins  v.  Gault 

654 

Dawson  v.  Holcombe 

251, 

505 

V.  Jones 

717 

V.  Moons 

216 

Day  V.  Bennett 

402 

V.  Newark  I.  R.  Man.  Co. 

80 

V.  Paupierre 

473 

V.  Zimmerman 

588 

Deacon  v.  Oliver 

480 

481 

Dean  v.  Bailey 

203, 

311 

V.  Oppenheimer 

94  a 

Dear  v.  Brannon 

341 

Deaver  v.  Keith 

548 

DeBlanc  v.  Webb 

636 

Debuys  v.  Yerbey 

81 

Decker  v.  Bryant 

100 

Decoster  v.  Livermore 

511 

Dehler  v.  Held 

342 

Delacroix  v.  Hart 

452 

Delano  v.  Kennedy 

318 

Deloath  v.  Jones 

245 

Denegre  v.  Milne 

30 

Denham  v.  Pogue 

588 

Dennie  v.  Hart 

674  d 

Denning  v.  Corwin 

85 

V.  Smith 

87  6 

Dennis  v.  Twichell 

609 

Dennison  v.  Nigh 

247 

Derinistoun  v.  N.  Y.  C 

&  S.  F 

Co. 

251 

Denny  v.  Ward 

287 

V.  Warren 

256 

,  276 

V.  WiUard     204, 

222, 

294, 

357, 

369,  389 
Denson  v.  Sledge  188 

Denton  r.  Livingston  206 

Derr  v.  Lubey  516 

Desha  v.  Baker    205,  224,  451  6,  696, 

712 
Despatch   Line  v.  Bellamy  Man. 

Co.  453,  485,  548 

Deupree  v.  Eisenach  106 

Devall  V.  Taylor  101 

DevoU  V.  Brownell  610 

Devries  v.  Buchanan  654 

Dew  V.  Bank  of  Alabama  696 

Dewar  v.  Spence  214 

Dewey  v.  Fi'ld  294,  389,  392 

Dewing  v.  Wentworth  511 

De  Wolfj;.  Habhett  246 

V.  Dearborn  245 

Deyo  V.  Jennison  193 

Dezell  V.  Od.-ll  379,  392 

])ick  V.  Bail.y  292  d 

Dickenson  v.  Cowley  101 


Dickerson  v.  Simms 
Dickey  v.  Fox 
Dickinson  v.  Benhara 
V.  McGraw 
V.  Strong 
Dickison  v.  Palmer 
Dickman  v.  Williams 
Dickson  v.  Morgan 
Dider  v.  Courtney 
Didier  v.  Galloway 
Diefendorf  y.  Oliver 
Dierolf  v.  Winterfield 
Dillenback  v.  Jerome 
Dillon  V.  Watkins 
Dirlam  v.  Wenger 
Divine  v.  Harvie 
Dix  V.  Cobb 
Dixon  V.  Hill 
Dobbins  v.  Hyde 

y.  O.  &  A.  Rai 
Dodd  V.  Brott 
Dodge  V.  Griswold 
Doggett  V.  St.  Louis  M 

Co. 
Dole  V.  Boutwell 
Dolsen  v.  Brown 
Donham  v.  Wild 
Donnell  v.  Jones      154 

Donnelly  v.  O'Connor 

Dore  V.  Dawson 

Dorman  v.  Kane 

Dorr  V.  Clark 

V.  Kershaw 

Dorsey  v.  Kyle 
V.  Pierce 

Douglass  V.  Neil 

Dove  V.  Martin 

Dow  V.  Smith 

V.  Whitman 

Downer  v.  Brackett 
V.  Curtis 
V.  Shaw 
V.  ToplifF 

Downing  v.  Phillips 

Doyle  V.  Gray 

Drake  v.  Hager 

Drane  v.  McGavock 

Drayton  v.  Merritt 

Drew  V.  Alfred  Bank 
V.  Decpiindre 
V.  Livermore 

Driggs  V.  Harrington 

Driscoll  V.  Hoyt 

Drown  v.  Smith 

Drummondj).  Stewart 

Dryden  v.  Adams 

Dubois  V.  Dubois 


Section 

25 

586,  589 

75 

166 

465,  481 

508 

245,  246 

628 

409 

115 

601 

318 

349,  367 

132 

715 

516  a 

603,  608 

225 

528,  706 

Iroad  Co.  516  a 

607 

225 

.  &  F.  Ins. 

663 

710 

525 

361,  362 

,  157,  174,  175, 

726,  738,  742  a 

659 

575 

294 

339 

321,  322,  323 

65 

216 

691,  697 

133,  134 

89  b,  136 

437  a 

425 

552 

5 

549 

415 

594,  689  a 

103 

506,  509 

388 

184  a 

108,  111,  441 

381,  392 

335  a 

461.  659 

394 

173  a 

517 

251,  505 


XXXVl 


INDEX   TO  CASES   CITED. 


Section 
465  b 
310  a 
611 
711 
256,  292  a,  357 
30o 
98 
[.  Co.   251,509 
319 
405 
557 
159,  176,  177 
263 


Dudley  v.  Falkner 
V.  Goodrich 
Duncan  i'.  Berlin 
V.  Ware 
Dunklee  v.  Falcs 
Dunlap  V.  Iluntinj^ 
Dunlevy  v.  Schartz 
Dunlop  V.  Paterson  F. 
Dunn  V.  Crocker 

V.  Myres 
Dunnegan  v.  Byers 
Dunning  v.  Humphrey 
Durant  v.  Johnson 
Durrossett's  Adni'r  v.  Hale  440 

Dwight  V.  Bank  of  Michigan  526 

Dwinel  v.  Stone  652 

Dyer  v.  Flint  106 

V.  McHenry  687 


E. 


Ealer  v.  McAllister  124 

Earl  V.  Spooner  181 

Earthman  r.  Jones  5,  87  a 

Eastman  v.  Avery  349 

V.  Eveleth  305 

Easton  v.  Goodwin  339 

Eaton  V.  Badger  5,  85,  449 

V.  Bartscherer  170 

V.  Wells  77  a 

Ebner  v.  Bradford  9 

Eddy  V.  Heath's  Garnishees  548 

Edgerley  v.  Sanborn  671 

Edmonson  v.  DeKalb  County  452,  466  « 

~     ■  696 

672 

490 

686 

105 

318 

436 

162 

319 

516 

487 

186,  208 

248,  369 

561,  583, 659 

42 

10,  420 

251 

87  a 

134  n 

517,  674 

420 

98,  408 

481,  654,  672 


Edrington  v.  Allsbrooks 
Edson  V.  Sprout 
V.  Trask 
Edwards  v.  Delaplaine 

V.  Flatboat  Blacksmith 
V.  Prather 
V.  Toomer 
V.  Turner 
Egan  V.  Lumsden 
Egerton  v.  Third  Municipality 
Eichelberger  v.  Murdock 
Ela  V.  Shepard 
Eldridge  v.  Lancy 
Ellicott  V.  Smith 
Ellington  V.  Moore 
Elliott  V.  Jackson 
V.  Newby 
V.  Peirsol 
V.  Stephens 
Ellis  V.  Goodnow 
Ellison  V.  Mounts 
V.  Tallon 
V.  Tuttle 


Section 

Ellsworth  V.  Moore  119 

Emanuel  v.  Smith  460 

Embree  v.  llanna  700 

Embury  ?;.  Conner  85 

Emerson  v.  Fox  231 

V.  Partridge  581,  588 

V.  Smith  244  a 

V.  Upton  217,  219 

V.  Wallace  454  a 

Emery  v.  Davis  490 

V.  Lawrence  612 

Emmett  ik  Yeigh  105 

Enders  v.  Richards  74 

V.  Steamer  Henry  Clay        112, 


English  V.  Wall 
Enos  V.  Brown 
V.  Tuttle 
Ensworth  v.  King 
Erie  v.  Knapp 
Erskine  v.  Sangston 
V.  Staley 


Erwin  v.  Com.  &  R.  R.  Bank 


144,  414 

91 

351,  353 

589,  599,  655 

221,  239 

516 

654 

224,  453,  455 


165, 
588 
5,  460,  697 
246 
490 
583,  669 
112,  144,  331,  414 
700 


V.  Heath 
Esdon  V.  Colburn 
Estabrook  v.  Earle 
Estill  V.  Goodloe 
Evans  v.  King 

V.  Matlack 

V.  Saul 
Eveleth  v.  Little 
Everdell  v.  Sheboygan,  &c.,  R 

Co. 
Everett  v.  Herrin 
Excelsior  Fork  Co.  v.  Lukens 
Ezelle  V.  Simpson 


R. 


56 
219 

465  a 
485 
405 
205 


F. 


283 


Fairbanks  v.  Stanley 
Fairchild  v.  Lampson 
Fairfield  v.  Baldwin  276,  282 

V.  Madison  Man.  Co. 

V.  Paine     212,  218,  219 


Falconer  v.  Freeman 
Falls  V.  Weissinger 
Fanning  v.  First  Nat.  Bank 
Farley  v.  Farior 
Farmer  v.  Simpson 
Farmers'  Bank  v.  Beaston 


251, 
509 
V.  Day 

r.  Gettinger        91 
Farmers   and  Mechanics'  Bank  v. 
Little 


,  286 
572 

,  285 
112 

220, 
265 
225 
341 
480 
105 
708 

506, 

,511 
231 

,  687 

'  424 


INDEX   TO   CASES   CITED, 


XX  XV 11 


Section 
Farmers  &  Mechanics'  Nat.  Bank 

V.  King  491  a 
Farmers  and  Merchants'  Bank  v. 

Franklin  Bank  685 

Farnham  v.  Cram  393,  395 

V.  Gihnan  3fil 

Farrington  v.  Edgerly  292  a 

Farrow  v.  Barker  63 

FarwL'll  V.  Howai-d  461 

Faulkner,  In  re  87 ,  100 

V.  Waters  551 

Faulks  V.  Heard  658  a 

Faxon  v.  Mansfield  689  a 

Fay  V.  Sears  578,  639,  659 

V.  Smith  558 

Featlierston  v.  Compton  692,  696 

Ft-azle  V.  Simpson  729 

Felker  v.  Emerson  311,  426 

Fellows  D.  Brown  10 

V.  Dickens  141 

V.  Duncan  545 

V.  Miller  139 

Felton  V.  Wadsworth  285 

Ferguson  v.  Suiiih  95 

Ferris  i\  Carlton  98,  401 

V.  Ferris  10 

Fessenden  v.  Hill  111 

Fettyplace  v.  Dutch  222,  292  e 

Field  V.  Adreon  48,  59  a 

V.  Crawford  487 

V.  Jones  509  a 

V.  Livermore  74 

V    Milburn  230 

V.  Watkins  631,  686 

Fife  V.  Clarke  317 

Fifield  V.  Wood  658  e 

V.  Wooster  290 

Firebaugh  v.  Hall  85 

V.  Stone  672 

First  V.  Miller  251,  505 

Fir.st  Baptist  Church  v.  Hyde        682  h 

First  National  Bank  v.  Perry  539 

First  National  Bank  v.  Davenport 

&  St.  P.  R.  R.  Co.  465  a 

Fish  V.  Field  .548 

Fibber  v.  Bartlett  388,  3^9 

V.  Consequa  14,  415 

V.  Taylor  418 

V.  Vose  425 

Fisk  V.  Herrick  568 

V.  Weston  530 

Fitch,  Matter  of  99 

V.  Rogers  290 

V.  Ross  317,  422 

V.  Waite        42,  48,  221,  2(13,  4H\ 

Fitchntt  V.  Dolbee  497,  499 

Fithian  v.  Brooks  6')9 

V.  N.  Y.  &  E.  R.  R.  Co.  478,  6->4 


Section 

Fitzgerald,  Matter  of  49,  60 

V.  Blake  190 

V.  Caldwell  665,  700,  701, 

704 

Fitzhugh  V.  Hellen  237 

Fitzsimmons  v.  Marks  5 

Flake  v.  Day  93 

Flanagan  v.  Gilchrist  167 

V.  Wood  292  a,  292  b 

Flash  V.  Paul  696,  6'J7 

Fleming  v.  Bailey  178 

V.  Burge  144 

Fletcher  v.  Fletcher  481 

Flower  v.  Griffith  95 

V.  Parker  709 

Floyd  V.  Blake  10 

V.  Hamilton  157,  175 

Folsom  V.  Haskell  488 

Force  v.  Gower  5 

Ford  V.  Babcock  85 

V.  Dyer  196 

V.  Hurd  116,  696,  711 

V.  Wilson  439 

V.  Woodward  90,  116,  696 

Forepaugh  v.  Appold  604 

Forsyth  v.  Warren  444.  449  a 

Fortman  v.  Rottier  729,  732 

Fortune  v.  State  Bank  583,  659 

V.  St.  Louis  516 

Foss  V.  Stewart  195 

Foster  v.  Drvfus  400 

V.  Dudley  548,  618,  620 

V.  Glazener  85 

V.  Hall  58 

V.  Higginbotham  89  6 

V.  Jones  620,  697,  706 

V.  Potter  244 

V.  Sinkler  678 

V.  Sweeney  740 

V.  Walker      576,  579,  583,  607, 

659 

V.  White         576,  579,  607,  717 

Foster's  Case  425 

Foulks  V.  Pegg  222,  291 

Fowble  «.  Walker  212 

Fowler  v.  Bishop  388 

V.  Jenkins  89  b 

V.  McClelland  496 

V.     Pittsburg,    F.    W.,    & 

C.  R.  R.  Co.  465  a 

V.  Williamson  607 

Fowles  V.  Pindar  378 

Fox  V.  Hoyt  89  b 

V.  Reed  688  a 

Foyles  v.  Kelso  437  n 

Frankel  v.  Stern  121,  178 

Franklin  v.  Ward  622 

Franklin  Bank  u.  Batchelder  425 


XXXVlll 


INDEX   TO   CASES   CITED. 


Section 

Fian'c'in  Rnnk  r.  Small  344 

Franklin  Fire  Ins.  Co.  v.  West       224, 

549,  669,  671 

Frarv  v.  Dak  in  85 

Frazier  i'.  Willoox  223,  697 

Frt>e  V.  Hukill  107 

Freeborn  v.  Glazer  415,  420 

Freeman  v.  Creech  282 

V.  Grist  263 

V.  Howe  251 

V.  Thompson  437  a,  440,  446, 

448 

Freidenrich  v.  Moore  658  e 

Frellson  v.  Green  224 

French  v.  Rogers  572 

V.  Stanley    202,  204,  257,  294, 

310 

Frere  v.  Ferret  107 

Fridenburg  v.  Pierson  262,  273 

Friedlander  v.  Myers  104 

Frost  V.  Brisbin  65 

V.  Cook  132 

V.  Kellogg  248,  388 

V.  Mott  225 

V.  Patrick  659 

V.  White  323 

Frotbingham  v.  Haley  551 

Fuller  V.  Bryan  39 

V.  Holden  294,  389 

V.  Jewett  481 

V.  O'Brien  550 

Fullerton  v.  Mack  200 

Fulton,  The  Robert  251 

V.  Heaton  185 

Fulweiler  v.  Hughes  557,  615 

Funkhouser  v.  How  586,  589,  706 


G. 


Gaddis  V.  Lord 

173, 

744 

Gaftney  v.  Bradford 

588 

Gager  v.  Watson 

623 

Gaines  v.  Beirne 

460 

Gail  her  v.  Ballew 

509 

Galbraith  v.  Davis 

246 

Gale  V.  Ward 

256 

Galena  &C.  U.  R.  R.  Co 

.  V.  Men- 

zies 

604 

Gallagher  v.  Cogswell 

141 

Gallego  V.  Gallego 

701 

Galloway,  Matter  of 

82 

Gallup  V.  Josselyn 

254 

Gardner  v.  Hu^t 

194 

Garland  v.  Harrington 

611 

612 

Gannon  v.  Barringer 

112,  144 

414 

Garner  v.  Biirlesun 

101 

102 

V.  White 

98 

Garnet  v.  Wimp 
(Jarretson  r.  Zacharie 
Garrett  v.  Tinnen 
(iarrott  v.  Jallray 
(xary  v.  McCown 
Gasherie  v.  Apjde 
(Ja^*(Juet  V.  Johnson 
(iass  V.  Williams 
Gassett  V.  Grout 
Gates  V.  Bushnell 

V.  Flint 

V.  Gates 

V.  Kerby 
Gay  V.  Caldwell 
V.  Southworth 


Section 

185 

170 

312 

629 

208 

75 

246 

331,  841  b 

502 

221,  263 

256 

291 

706 

216,  218 

244  a 


Gee  V.  Alabama  L.  I.  &  T.  Co.       420 

V.  Cumming  678 

V.  Warwick     451  a,  496,  645,  678 

Geer  v.  Chapel  545 

Genin  v.  Tompkins  400 

Georgia  Ins.  &  Tr.  Co.  v.  Oliver     665 

Gerrish  v.  Sweetser  610 

Gery  v.  Ehrgood  480 

Getchell  v.  Chase  463,  548 

Gibbons  v.  Bressler  87  a 

Gibbs  V.  Chase  198,  291 

Gibson  v.  Cook  611 

V.  Jenney  195 

V.  McLaughlin  44 

V.  Wilson  205 

(biddings  v.  Coleman  523,  639,  656 

Gies  V.  Bechtner  549 

Gilbert  v.  Crandall  349,  362 

V.  Hollinger  193 

Gildersleeve  v.  Caraway  713 

Gile  V.  Devens  193 

Gill  V.  Downs  414,  420 

GiUaspie  v.  Clark  31"2 

Gilman  v.  Hill  199 

V.  Stetson  219 

Gilmer  v.  Wier  183 

Gilmore  v.  McNeil  373,  376,  386 

Ginsberg  v.  Pohl  196  b,  265 

Girard  Fire  Ins.  Co.  v.  Field  549,  669 

Gianton  v.  Griggs  721 

(ilassell  V.  Thomas  681 

Gleason  v.  Briggs  311 

V.  Gage  673 

Glenn  v.  B.  &  S.  Glass  Co.      484,  671 

V.  Gill  509  a 

Goble  V.  Howard  27 

Godbold  V.  Bass  247,  502 

Goddard  v.  Cunningham  133,  415 

V.  Hapgood  453,  537 

V.  Perkins  222 

Godden  v.  Pierson  457 

Goebel  V.  Stevenson  322  b,  339 

Gold  V.  Ilousatonic  Railroad  Co.     478 


INDEX   TO   CASES   CITED. 


XXXIX 


Goldsmith  v.  Picard 
V.  Stetson 
GoU  V.  Hinton 
Goode  V.  Holcombe 
V.  Longmire 
Goodman  v.  Allen 
Goodrich  v.  Church 
Goore  v.  McDaniel 
Gordon  v.  Coolidge 
V.  GafFey 


Section 

743,  745 

184 

244,  248 

658/ 

246,  255  a 

338 

268 

224,  229 

658,  659 

10 


V.  Jenney  256,  291,  292  c,  371 


V.  Johnston 
Gore  V.  Clisby 
Gorman  v.  Swaggerty 
Goss  V.  Gowing 
Gouch  V.  Tolman 
Gould  V.  Meyer 
Gover  v.  Barnes 
Gower  V.  Stevens 
Grace  v.  Maxfield 
Gracey  v.  Coates 
Graighle  v.  Notnagle 
Graham  ».  Bradbury 

V.  Burckhalter 
V.  Moore 
V.  Ruff 
Grand  Gulf  R.  R.   &  B 

Conger 
Granite  Bank  v.  Treat 
Grant  v.  Deuel 
V.  Shaw 
Graves  v.  Cole 

V.  Cooper 
V.  Strozier 
V.  Walker 
Badgett 
Bennett 
V.  Briscoe 
V.  Henby 
V.  MacLean 
V.  McNeal 
V.  Perkins 
Grayson  v   Veeche 
Green  v.  Doughty 

V.  F.  &  C.  Bank 
V.  Gillett 
V.  Haskell 
V.  Lanier 
V.  Nelson 
V.  Shaver 
Greene  v.  Bcckwith 
V.  Pyne 
V.  Tripp 
Greenleaf  w.  Mumford 

V.  Perrin 
Greentree  v.  Rosen  stock 
Greenvault  v.  F.  &  M.  Bank 
Greenwood  v.  Hector 


Gray  v 

V 


331 

465,  481 

452 

54,  102 

652 

658  a,  695 

403 

292  a,  292  b 

545 

662 

253 

11,  111,  409 

141 

548 

107 

Co.  V. 

131 

85 

158 

483,  517,  533,  551 

113 

658  b 

27 

656 

684 

12 

11 

624 

339 

85 

831 

543 

599 

474 

581,  604 

85 

341  c 

688 

422 

60,  67 

66,  208 

106,  696 

225,  231 

463,  541 

717 

113 

619 


Section 

Greer  v.  Powell  588 

V.  Rowley  470,  516 

Gregg  V.  Nilson  451  a 

V.  Thompson  448 

Gregory  v.  Higgins  585,  588 

Greiner  v.  Prendergast  10 

Gridley  v.  Harraden  618 

Griffith  V.  Robinson  120 

Grignon  v.  Astor  85,  86 

Grigsley  v.  Love  263 

Grissom  v.  Reynolds  711 

Griswold,  In  re  262,  273 

V.  Plumb  378 

V.  Sharpe  10,  420 

Groat  V.  Gilles{)ie  177 

Groorae  v.  Lewis  509  a 

Grosvener  v.  F.  &  M.  Bank  481 

V.  Gold  222 

Grove  v.  Harvey  134 

Grover  v.  Buck  103 

Guay  V.  Andrews  339 

Guier  v.  O'Daniel  62 

Guild  V.  Holbrook  481,  551 

Guile  V.  McNanny  101 

Guilhon  v.  Lindo  34 

Gunn  V.  Howell    658  a,  694,  697,  706, 

710,  711 

Gutraan  v.  Virginia  Iron  Co.  103 


H. 


Haber  v.  Nassitts 

70  a 

Hacker  v.  Stevens 

453 

Hackettstown  Bank  v. 

Mitchell       65  a 

Hadley  v.  Peabody 

667 

Haffey  v.  Miller 

667 

H  alley  v.  Patterson 

107 

Hagan  v.  Lucas 

267 

Hagedon  v.  Bank  of  Wisconsin    509  a 

Hnggart  v.  Morgan 

65 

Haggerty  v.  Ward 

449 

Hagood  V.  Hunter 

101 

Haight  V.  Bergh 

81 

Hair  v.  Lowe 

658  e 

Haizlette  v.  Lake 

75  a 

Halbert  v.  McCuUoch 

339 

V.  Stinson 

624 

Haldeman  v.  H.  &  C. 

R.  R.  Co.     221, 

222 

223.  527 

Hale  V.  Chandler 

227,  275 

V.  Cummings 

228 

V.  Duncan 

251,  294 

V.  Huntley 

250 

Haley  v.  Reid 

244 

Hall  V.  Brazelton 

113 

V.  Howd 

85 

V.  Magee 

541, 

545,  594 

xl 


INDEX   TO   CASES    CITED. 


Hall  V.  Page 
V.  Stryker 
r.  Wa  I  bridge 
V.  Williams 
Halpin  r.  liarringer 
Halsey  v.  Whitney 
Hamilton  r.  Bryant 
V.  Knight 
Ilammett  v.  Morris 
Ilananer  v.  Casey 
Hancock  v.  Colyer 

I'.  Henderson 
Handly  v.  Pfister 
Handy  v.  Brong 
r.  Dobbin 
Hanmer  v.  Wilsey 
Hanna  v.  Bry 

i\  Lauring 
V.  Loring 
Hannahs  i'.  Felt 
Hanness  v.  Smith 
Hansen  v.  Butler 
Hansford  v.  Perrin 
Hanson  v.  Davis 
V.  Dow 
Harbison  v.  INIcCartney 
Hardaway  v.  Semmes 
Hardesty  v.  Campbell 
Hardin  v.  Lee 
Harding  v.  Harding 
Hardy  v.  Colby 
V.  Hunt 
V.  Trabue 


Section 

689 

99,  2i>5 

262,  291 

87  a,  454  b 

489 

244 

S2Sb 

110 

459 

221 

481,  551,  667 

236 

223 

10 

244 

185  c 

609,  626 

697 

10 

221,  224 

311 

502 

335,  338 

572 

184  a 

229,  267 

229 

403 

448 

276 

609 

630 

101 


Harley  v.  Charleston  S.  P.  Co.  80 

Harlow  V.  Bet'ktle  445 

Harmon  v.  Birchard  696,  711,  715 

V.  Moore  252  a,  381,  388 

Harney  v.  Ellis  683,  659 

Harper  v.  Bell  317 

V.  Keys  170 

V.  Miller  212 

Harrell  v.  Whitman   457,  541,  545,  547 

Harriman  lu  Gray  2;t7 

Harrington  v.  People        85,  87  6,  89  b 

Harris  v.  Aiken  638 

V.  Dennie  251 

V.  Grodner  440 

V.  Hanson  196 

V.  Phoenix  Ins.  Co.        458,  517 

V.  S.  &  K.  R.  R.  Co.         674  b 

r.  Taylor  325,  405 

Harrison  v.  King  98 

V.  Pender  274 

V.  Renfro  422 

V.  Trader  224,  428 

Harrod  v.  Burgess  27  a 

Harrow  v.  Lyon  413,  429 

Harshaw  v.  Taylor  85 


Section 

Hart  V.  Anthony  474 

V.  Dahlgreen  '657 

i;   Kanady  124 

Hartford  v.  Jackson  245 

Hartford  Quarry  Co.  v.  Pendleton 

316  a 
Hartshorne  v.  Henderson  645  a 
llartle  v.  Long  498 
Hartley  v.  Tapley  612 
Harvey  v.  Grymes  224 
V.  Tyler  85,  87  a 
Haselton  v.  Monroe  700 
Haskell  V.  Haskell  490 
Hassie  v.  G.  I.  W.  U.  Congrega- 
tion 457,  545 
Hatch  V.  Bay  ley  245  a 
V.  Lincoln  245  a 
Hathaway  v.  Davis  27,  418 
V.  Larrabee  237 
V.  Russell561,563,  684,  688 
Hatry  v.  Shuman  406,  409 
Haughton  v.  Eustis  425 
Haven  v.  Low  245,  539 
V.  Snow  218.  220 
V.  Wentworth  403,  541 
Havis  r.  Taylor  52,741,742 
V.  Trapp  404 
Hawes  V.  Langton  639,  649,  652 
V.  Waltham  568,  572 
Hawkins  v.  Albright  406 
Hawley  v.  Atherton  661 
V.  Delmas  101 
Hawthorn  v.  St.  Louis  616 
Hayden  v.  Sample  159,  176,  739 
Hayes  v.  Josephi  323  a 
Haynes,  Ex  parte          87,  99,  100,  106 
V.  Gates  604,  691 
V.  Small  204,  208 
V.  Tenney  377  a 
Hays  V.  Gorby  119 
Haywood  v.  Collins  85,  437  a,  448 
V.  Hardie  196  c 
V.  McCrory  96,  437  a 
V.  Russell  440,  443  a 
Hazard  v.  Agricultural  Bank              79 
V.  Franklin  667 
V.  Jordan  17,-26 
Hazelrigg  v.  Donaldson  323 
Hazeltine  v.  Page  695 
Hazen  v.  Emerson  648,  678 
Head  v.  Merrill  472 
Heard  v.  Fairbanks  249,  2.58 
Hearn  v.  Crutcher  490,  508 
V.  Foster  625 
Hearne  v.  Keath  28 
Heath  V.  Lent  176,  179 
Hebel  v.  Amazon  Ins.  Co.  451  ft 
Heffernan  v.  Grymes  697 


INDEX   TO   CASES    CITED. 


Xli 


Section 

Heidenbach  v.  Scliland 

61 

Helme  v.  Pollard 

653 

Hemmenway  v.  Pratt 

548 

V.  Wheeler 

256,  258, 

292  e 

Henderson  v.  Drace 

147 

V.  Henderson 

81 

V.  Thornton 

30,  275 

Hennessey  v.  Farrell 

667 

Henrie  v.  Sweasey 

95,  449  a 

Henry  v.  Mitchell 

237 

Heiisiey  v.  Morgan 

422 

Hepp  V.  Glover 

245 

Hergraan  v.  Dettlebach 

249 

Herndon  v.  Forney 

166 

Hernstein  r.  Matthewson 

10 

Herring  v.  Johnson 

662 

Hervey  v.  Champion 

224 

Hess  V.  Shorb 

498 

Hesseltine  v.  Stockwell 

199 

Hewes  V.  Parkman 

195 

Hewitt  V.  Wheeler 

546 

HeA'neman  v.  Dannenberg 

225 

Hibbard  v.  Clark 

684  a 

Hibbs  V.  Blair 

150 

Hicks  0.  Chapman 

502 

V.  Gleason               453 

, 542,  701 

Higgins  V.  Whitney 

185  c 

Hill  V.  Beach 

508 

V.  Bond 

415 

V.  Chatfield 

10 

V.  Child 

263 

V.  Cunningham        212, 

213,  215, 

415 

V.  Hunnewell  288 

V.  Kroft  588 

V.  La  Crosse  &  M.  Railroad 

Co.  506 

V.  Merle  323 

V.  Rushing  157,  167,  168 

V.  Wiggin  381.  388 

Hinckley  v.  Bridgham  377  a 

V.  Williams  454  h,  487 

Hincs  V.  Kimball  53 

Hiiikle  V.  Ciirrin  673,  678 

Hinsdill  V.  Satford  588 

Hisler  v.  Carr  124 

Hitchcock  V.  p]gerton  481 

V.  Watson  659,  663 

Hitt  V.  Lacy  620,  702,  706 

Hoag  V.  Hoag  5-13 

Hoar  V.  Marshall  501 

Hobson  V.  Emporium  R.  E.  &  M. 

Co.  449  n 

Hotrkaday  v.  Sallee  247 

Hodges  V.  (irahara  451  b,  697 

Hodskin  v.  Cox  373 

Hodsoa  V.  McConnell  604 


Section 

Hoffman  v.  Fitzwilliam  451  a 

V.  Simon  658  f 

Holbrook  v.  Baker  245,  539 

V.  Hvde  199 

V.  Waters  247,  501 

Holcomb  V.  Foxworth  166 

Holland  v.  Adair  448 

Holliday  v.  Sterling  732  a 

Hollingshead,  In  re  96 

Hollister  v.  Goodale  256 

Holloway  v.  Brinkley  34 

Hollv  V.  Huggeford  246 

Holman  v.  Fisher  422,  496 

Holmes  v.  Barclay  10 

V.  Remsen  706 

Holston  Man.  Co.  v.  Lea  95 

Holt  V.  Allaway  87  a 

V.  Burbank  291,  370.  379 

Holton   V.  South  Pacific  Railroad 

Co.             _  653 

Homan  v.  Brinckerhoff  125 
Home  Mutual  Ins.  Co.  v.  Gamble  674  a, 

676,  711 

Hooper  v.  Hills  523 

Hooton  V.  Gamage  672  a 

Hoover  v.  Gibson  27 

Hopkins  v.  Nichols  101,  102 

V.  Ray  481 

V.  Suttles  108 

Hopkirk  v.  Bridges  5 

Horn  V.  Bayard  158,  175,  180 

V.  Cole  253  h 

Home  V.  Mitchell  118,  121  h 

Horner  v.  Doe  85 

V.  Harrison  168 

Hoshaw  V.  Gullett  332 

V.  Hoshaw  171 

Hoskins  v.  Johnson  561 

Hotchkiss  V.  McVickar  291 

Houghton  V.  Ault  67 

Housemans  v.  Heilbron  460 

Houston  I'.  Belcher  116,  124,  127 

V.  Nowland  G05 

r.  Walcott  697,711 

V.  Wolcott  630  a 

Hovey  v.  Crane  650 

V.  Wait  218,  219 

Plow  V.  Field  465 

Howard  v.  Card  539 

V.  Clark  263  a 

V.  Crawford  673 

V.  Daniels  237 

V.  Farr  244  a 

V.  Oppenheimer  120 

V.  Smith  374 

V.  Whittemore  363 

V.  Williams  195 

Howe  V.  Ould  588 


xlii 


INDEX   TO    CASES   CITED. 


Section 

Howe  V.  Starkweather 

2U 

I. 

V.  Stewart 

244  b 

Section 

Ilowell  r.  Freeman 

620 

Ifflehart  v.  Moore 

588 

V.  Kiiifr.sbury 

94 

Illinois  C.  R.  R.  Co.  v.  Cobb 

618 

Howes  I'.  Spieer 

190,  381 

V.  Weaver       454 

llowland  v.  Spencer 

481 

Ilsley  V.  Nichols 

200 

Hoy  V.  Brown 

25 

Ingalls  V.  Baker 

244/; 

V.  Eaton 

269 

V.  Dennett 

686 

Hoyt  V.  Robinson 

661 

Ingrahani  v.  Phillips 

425 

V.  Swift             457, 

463,  541,  647 

Innian  v.  AUport 

86,  112  a 

Hubbard  v.  Williams 

588 

V.  Strattan 

323 

Hubbardston  L.  Co.  v.  Covert        90  b  \ 

Tnslee  v.  Lane 

245 

Hubbell  V.  Root 

297  n 

Insurance  Co.  of  Penn.  v.  Phosnix 

Hueheson  r.  Ross 

115,  123 

Ins.  Co. 

604 

Hudson  V.  Daily 

420 

Irish  V.  Wright 

10 

V.  Hunt 

539,  561 

Irvin  V.  Howard         96,  101, 

102,  147, 

HuflFr.  Hutchinson 

313  J,  318 

323 

V.  Mills 

589,  620 

Irvine  v.  Lumbermen's  Bank 

700 

Hugg  V.  Booth 

547,  548 

V.  Scobee 

216 

Hughes  V.  Brooks 

158,  176 

Irwin  V.  P.  &  C.  R.  R.  Co. 

665 

V.  Kelly 

246 

Isaacks  v.  Edwards 

405 

V.  Lapice 

216 

Isham  V.  Downer 

233 

V.  Martin 

103 

V.  Ketchum 

262,  273 

V.  Monty 

674  a 

Ives  V.  Bartholomew 

732,  733 

V.  Stinnett 

103 

V.  Hamlin 

381 

Hull  V.  Blake 

708 

V.  Vanscoyoc 

647 

Humphrey  v.  Barns 

715 

Ivy  V.  Barnhartt 

729 

V.  Warren 

635 

Humphreys  v.  Cobb 

305,  373,  374 

V.  Matthews 

34 

J. 

Hunt  V.  Coon 

461,  659 

V.  Field 

225 

Jackson  v.  Bank  U.  S. 

491 

V.  Johnson 

5 

V.  Burke 

108,  108  a 

V.  N orris 

12,  19 

V.  Holloway 

430 

V.  Stevens 

251,  509 

V.  Perry 

67 

V.  Wickliffe 

442 

V.  Shepard 

87  b 

Hunter  v.  Case 

465 

V.  Sliipman 

658  a,  682 

V.  Ladd 

148 

V.  Stanley    133,  135 

,  148,  415 

Huntington  v.  Blaisdell 

256,  291 

V.  Wals worth 

81 

V.  Risdon 

594 

V.  Warwick 

141 

Huntley  v.  Stone 

487,  514 

Jackson's  Ex'r  v.  Lloyd 

665 

Huntress  v.  Burbank 

704 

Jacobs  V.  Remsen 

225 

Hurd,  Matter  of 

81 

Jacoby  v.  Gogell 

14,  104 

V.  Jarvis 

69 

Jaeger  v.  Stoelting 

341a 

Hurlburt  v.  Hicks 

606 

James  v.  Dowell 

415 

Hurlb,ut  V.  Seeley 

65 

V.  Fellowes 

678 

Husbands  v.  Jones 

229 

Jameson  v.  Paddock 

375,  388 

Hussey  v.  Thornton 

246 

V.  Ware 

373 

Hutchins  v.  Brown 

216 

Janney  v.  Spedden 

5 

V.  Evans 

588 

Jaquett  v.  Palmer 

608 

V.  Hawley 

463,  541,  578 

Jasper  County  v.  Chenault 

148 

V.  Sprague 

523 

Jetlery  v.  Wooley 

25 

V.  Watts 

614 

Jeffries  v.  Harvie 

205 

Hutchinson  v.  Eddy 

715 

Jenney  v.  Delesdernier 

361 

V.  Lamb 

10 

V.  Rodman 

381 

V.  Parkhurst 

372 

Jennings  v.  Joiner 

166  a 

Hyde  v.  Hig^ins 

19 

V.  Summers 

550 

Hynson  v.  Taylor 

10 

Jewel  V.  Howe 

101 

INDEX   TO   CASES   CITED. 


xliii 


Jewett  V.  Bacon 

V.  Dockray 
V.  Torrey 
Johan  V.  Rufener 
Johns  V.  Church 

V.  Field 
Johnson  v.  Buell 
I'.  Carry 
V.  Day 
V.  Delbridge 
V.  Edson 

V.  Farmers'  Bank 
V.  Fleetwood 
V.  Gage 
V.  Gorhara 
Griffith 
Hale 


Section 
560,  674  e,  680 
347 
381 
674  a 
197,  391,  392 
717 
112,  144,  414 
674  « 
214,  216,  220 
662 
228,  362,  413 
176 
247 


Jones  V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 

V.  Howard 

V.  Johnson 

V.  King 

V.  Laughlin 

V.  McCutchings 

V.  Moss 

V.  Pace 

V.  Short 

V.  Thayer 

V.  Weatherwax 

Anderson 

Mina.  Ins.  Co. 

Bank  of  N.  Liberties 

Bradner 

Buzzard 

Bvrd 

Gilbert 

Gorham 

Holland 

Howell 

Huntington 


Jones 

Kirksey 

Lake 

Leake 

M.  &  A.  Eailroad  Co. 

N.  Y.  &  E.  R.  R.  Co. 


448 

453 

455 

102 

684  « 

5 

567,  570 

74 

658/- 

207 

612 

34 

610 

327  a 

136 

489 

491  a 

246 

20 

414 

892,  394 

511 

83  a 

659 

454 


251,  331,  506 
744 


V. 


V. 
V. 
V. 

Jordan  v 

V 

Judah  V. 

V. 


Norris 

O'Donnell 

Peasley 

Pope 

R.-ed 

Tracy 

Webster 

Winchester 

Wood 

.  Gallup 

.  Hazard 

Duncan 

Judd 


185  fl 

106 

339 

452, 

478,  625 

481 

399 

831 

112 

85 

682 

95 

474 

701 

291,  294 

36 

414 

608 


Section 
Judah  V.  Stephenson  5 

Judson  V.  Lewis  196 

Junction  R.  R.  Co.  v.  Cleneay        575, 

588 


K. 


Kahn  V.  Herman 

130 

Kaiser  v.  Richardson 

8416 

Kaley  v.  Abbot 

602 

Kane  v.  McCown 

448,  448  a 

V.  Pilcher 

331 

Kanouse  v.  Dormedy 

320 

Kapp  V.  Teel 

588 

Karnes  v.  Pritchard 

461 

Kearney  v.  Nixon 

640 

Keel  V.  Ogden 

633,  655 

Keep  V.  Sanderson 

654 

eilh  V.  Harris 

624 

Kellogg  V.  Freeman 

460 

V.  Miller 

115 

Kelly  V.  Archer 

115,  124 

V.  Babcock 

487 

V.  Beauchamp 

174 

V.  Bowman      634 

,  639, 

649,  656 

V.  Dexter 

851 

353,  383 

u.  Donnelly 

95 

V.  Oilman 

1§7  6 

V.  Lane 

225 

V.  Roberts 

487,  525 

Kelso  V.  Blackburn 

87  6 

Keinpe's  Lessee  v.  Kennedy 

87  a 

Kendall  v.  Brown 

317,  318 

V.  Morse 

292 

Kennedy  v.  Aldridge 

614 

V.  Baillie 

62 

V.  Brent 

191,  453 

V.  Dillon 

87 

V.  H.  L.  &  S. 

Society       470 

V.  Morrison 

103 

V.  Raguet 

422 

Kennon  v.  Evans 

101,  107 

V.  Ficklin 

263 

Kergin  v.  Dawson 

539, 

658,  654 

Kerr  v.  Mount 

185  6 

Kesler  v.  St.  John 

599 

Ketchum  V.  Ketchura 

34 

Kettle  V.  Harvey 

541,  553 

Keyser  v.  Mitchell 

454  6 

Kidd  V.  Shepherd 

620 

Kidder  v.  Packard 

564 

Kidderlin  v.  Myer 

452 

Kicller  V.  Ehler         587 

,  588, 

589,  591 

K'llYv.  Old  Colony,  &c. 

R.  R 

Co. 

195,  244  h 

Kilburn  v.  Woodworth 

5 

Killey  v.  Scannell 

253  a 

xliv 


INDEX    TO   CASES   CITED. 


Section 

Killsa  V.  Lcrniond  706 

Kimball  i'.  Donald  (511 

i:  Gav  58S 

V.  IMant  585,  588,  6!)7 

('.  Weiliiifiton  275 

Kiinbroujih  r.  Davis  607,  717 

Kineaid  v.  Neall  262,  27o 

King  0.  Bucks  1%  a,  207 

V.  IIarriiin;ton  448 

V.  Montgomery  782 

V.  Moore         '  608 

V    Murphy  60!) 

V.  Vance      5,  437,  557,  588,  708 

Kingman  v.  Perkins  611 

Kingsland  v.  Cowman  100 

V.  Wor.shain  42 

Kingsley  v.  Missouri  Fire  Co.  570 

Kinney  v.  Heald  92 

Kinsey  v.  Wallace  726,  727 

Kirk  V.  Morris       331,  332,  333  a,  3:'.5 

Kirkman  v.  Hamilton  538 

V.  Patton  112 

Kirksey  v.  Bates  207,  327 

t'.  Dubose  185 

V.  Jones        157,  182,  727,  748 

Kitchen  v.  Reinsky  215 

Kittredge  v.  Emerson  425 

V.  Sumner  246 

*            V.  Warren  425 

Klemm  v.  Dewes  414 

Klenk  V.  Schwalm  95,  102 

Klinck  V.  Kelly  222 

Knabb  v.  Drake  244  a,  480 

Knap  V.  Sprague     269,  292  a,  351,  356 

Knapp  V.  Levanway  686,  642 

Knight  V.  Bowley  481 

V.  Gorham  528 

V.  Nelson  189 

Knox  V.  Protection  Ins.  Co.    469,  549, 

669 

V.  Schepler  571 

Kritzer  v.  Smith  144,  409 

Kruse  v.  Wilson  87  a,  91 

Kugk-r  V.  Shreve  64 

Kuhn  V.  Graves  221 

Kyle  w.  Connelly  186 


Labeaume  v.  Sweeney 

343 

Lackey  v.  Seibert 

221,  224 

Lackland  v.  Garesche 

4  a,  454  b 

Ladd  V.  Gale 

494 

V.  Hill 

248 

V.  Jacobs 

700,  710 

V.  Noith 

291 

Laighton  v.  Lord 

285,  881 

Section 

Lamb  v.  Belden  228 

V.  Day  208 

V.  Franklin  Man.  Co.  652,  658 

V.  Stone  458,  640 

Lambard  v.  Pike  237 

Lanibden  v.  Bowie  403 

Lambert  v.  Craig  278 

Lambeth  v.  Turubull  245 

Lamkin  v.  Phillips  528,  604,  607,  680. 

717 

Lamprey  v.  Leavitt  381 

Lane  v.  Fellows  108 

V.  Felt  461,  481 

V.  Jackson  256 

V.  Nowell  482 

Lang  V.  Waring  89  a 

Langdon  v.  Conklin  418 

V.  Lockett  509  a 

Langley  v.  Berry  601 

Lannan  v.  Smith  612 

Large  v.  Moore  607.  607  a 

Larimer  v.  Kelly  67,  222 

Larkin  v.  Wilson  478 

Lasley  v.  SislofF  654 

Lathrop  v.  Blake       210,  267,  291,  371 

V.  Cook  389,  391 

V.  Snyder  95 

Law] in  V.  Clay  442 

Lawrence  i\  Bank  225 

V.  Burnham  248 

V.  Featherston  142 

V.  Hagerman   175,  726,  782, 

745 

V.  Jones  400 

V.  Lane  706 

V.  Rice  299,  348 

V.  Smith          474,  476,  658  e 

V.  Yeatman  127 

Lawton  V.  Kiel  27 

l^ayman  v.  Beam  215 

Lea  V.  Maxwell  214 

«.  Vail  147 

Leach  v.  Cook  53 

V.  Thomas  124 

Learned  v.  Bryant  389 

i;,  Vandenburgh  221,  256 

Lecesne  v.  Cottin  813 

Lee  V.  Palmer  697 

V.  Peters  107 

V.  Stanley  67 

Leefe  v.  Walker  548 

Legro  V.  Staples  528 

Leigh  ;;.  Smith  460,  658  b 

Leland  v.  Sabin  602 

Lenox  v.  Howland  13,  400 

Leonard  v.  New  Bedford  Savings 

Bank  711 

V.  Speidel  325 


INDEX   TO   CASES    CITED. 


xlv 


Leonard  v.  Stout 
Lessing  v.  Vertrees 
Levi  V.  Darling 
Levy  V.  Levy 

V.  McDowell 
V.  Millnian 
Lewis  V.  Buck 
V.  Butler 
V.  Dubose 
V.  Kennedy 
V.  hynmn 
V.  Orpheus 
V.  Paine 
V.  Prenatt 
V.  Sheifield 
V.  Smith 
V.  AVhittemore 
Libbey  v.  Hodgdon 
Libby  V.  Cushman 
Lick  V.  Madden 
Lieber   v.    St.    Louis 

Assoc'n 
Lightner  v.  Steinagel 
Lincoln  v.  Beebe 
V.  Tower 
V.  White 
Lindau  v.  Arnold 
Lindell  v.  Benton 
Lindner  v.  Aaron 
Lindsay  v.  Larned 
Lindsley  v.  Malone 
Little  V.  Hale 
V.  Owen 
V.  Sinnett 
Littlefield  i\  Hodge 
V.  Smith 
Littlejohn  v.  Wilcox 
Livengood  v.  Shaw 
Livermore  v.  Rhodes 
Livingston  v.  Smith 
Lock  V.  Johnson 
Locke  V.  Tippets 
Locket  V.  Child 
Lockett  V.  Neutville 
Lockhart  v.  Johnson 

V.  Woods 
Lodge  V.  Lodge 
Loftin  V.  Shackleford 
Lonierson  v.  Hoffman 
V.  Huffman 
Loomis  V.  Green 
Lord  V.  Allen 

V.  Gaddis 
Loring  V.  Folgcr 
Lorman  v.  Plucnix  Ins, 
Lorrain  v.  Higgins 
Loubat  V.  Kipp 
Louderman  v.  Wilson 


Section 

60 

646 

120 

34,  95 

426 

33,  108 

251 

108,  115 

545 

77 

246 

258 

570 

629  a 

661 

541,  546 

199 

79 

35 

260  a 

A.    &    M. 

620 

506,  508 

324 

5 

235 

697 

424 

133,  415 

732 

406,  420 

588 

665 

89  6 

588 

609 

158,  176 

103,  409 

75 

185,  253,  426 

480,  630 

620,  674  a 

566 

134  c 

658  6 

173,  742  a,  743 

279 

689 

697,  711 

461,  548,  659 

199 

422 

418 

423,  711 

Co.  659 

100 

221,  422 

550 


Section 

Love  V.  Fairfield  126 

V.  Harper  263 

V.  Kidwell  167,  169 

V.  Voorhies  317,  322  a 

V.  Young  108 

Lovejoy  v.  Albree  474,  696 

V.  Hutcbins  295,  297,  309 

V.  Lee     _  481,  506,  508 

Lovelady  v.  Harkins  416 

Lovell  V.  Sabin  297,  299 

Lovely  v.  Caldwell  614 

Lovier  v.  Gilpin         185,  397,  405,  729 

Lowe  V.  Derrick  147 

Lo^yry  v.  Cady  381 

V.  Clements  460 

V.  Lumbermen's  Bank  708 

V.  Stevens  388 

V.  Stowe  91,  112,  127,  147,  415 

V.  Walker  291^  371 

Loyless  v.  Hodges  451  a,  453 

Lucas  V.  Godwin  207 

Lucky  V.  Miller  126 

Ludden  v.  Leavitt   291,  349,  351,  367, 

371 
Ludlow  V.  Bingham 

V.  Ramsey 
huffv.  Pope 
Lummis  v.  Boon 
Lundie  v.  Bradford 
Lupton  V.  Cutter 
Luton  V.  Hoehn 
Lyford  v.  Demerritt 
Lyle  V.  Barker 

V.  Foreman 

Lyman  v.  Cartwright 

V.  Dow 


r.  Lyman 
V.  Orr 
V.  Parker 
V.  Wood 
Lynch  v.  Crary 
Lynd  v.  Picket 
Lyndon  v.  Gorbam 
Lyon  V.  Rood 

V.  San  ford 
V.  Yates 
Lytle  V.  Lytle 


581,  588 

103 

611 

229 

517,  541,  545 

481,  544 

625 

706  a 

245,  539 

62 

706 

266 

381 

665 

643 

543 

221,  224  a 

195 

568 

256 

224,  239 

185  c 

275 


Mc. 

McAllister  v.  Brooks       578,  708,  710, 

718 

V.  Penn.  Ins.  Co.  478 

McBrayer  v.  Dillard  244  a 

McBride  v.  Farmers'  Bank  222 

V.  Floyd  224,  262,  273 

McBurnie  v.  Overstreet  255  a 


xlvi 


INDEX   TO   CASES   CITED. 


Section 

McCaffrey  v.  ]\Ioore  ()20 

MfCarn  v.  Rivers  285 

MiCarthy's  Appeal  244  a 

McCartney  v.  Branch  Bank  91 
McCarty  v.  Enilen  670,  620,  702 
]McClanahan  v.  Brack        111,  123,  416 

McClellan  v.  Young  516 

INIcClerkin  v.  Sutton  11 

]\IcCluny  V.  Jackson  275 

]\IcCobb  V.  Tyler  263 

McCoid  L\  Beatty  607 

McCollem  v.  White  63,  101 

McComb  V.  Reed  304 

McCoonibe  v.  Dunch  81 

McCoruiac  v.  Hancock  491  n 

McCoy  V.  Williams  517,  683 

McCraw  v.  Welch  102 

McCreary  v.  Topper  498 

McCuUoch  V.  Foster  87,  108 
McCullough  V.  Grishobber       732,  736 

V.  Walton  157,  182 

McDaniel  v.  Hughes  708,  723 

McDermott  v.  Donegan  672 

McDonald  v.  Carney  620 
V.  Fist              112,  133,  147 

V.  Forsyth  10 
McDougal  V.  Hennepin  County        516 

McDowell  V.  Crook  653 

McEachin  v.  Reid  459 

McEvoy  V.  Lane  653 

McFadden  v.  O'Donnell  701 

McFarland  v.  Farmer  246 

McGavock  v.  Bell  87  a 

McGehee  v.  Walke  641 

McGlinchy  v.  Winchell  541  a 

McGuire  v.  Pitts  627 

McHaney  v.  Cawthorn  108 
Mcllvaine  v.  Lancaster           454  b,  487 

Mclntyre  v.  White  126 
McKay  v.  Harrower         222,  299.  306 

McKean  v.  Turner  648,  549 

McKee  V.  Anderson  655 

McKellar  v.  Couch  726 

McKenzie  v.  Buchan  123,  143 

V.  Noble  509  a 

McKeon  v.  McDermott  701 

McLaughlin  v.  Davis  158 

V.  Swann  490 

McMechan  v.  Grilling  241 

McMeekin  v.  State  516  a 

McMenomy  v.  Ferrers  6 1 1 
McMillan  v.  Dana     317,  319,  321,  323 

V.  Richards  585 

McMinn  v.  Hall  550,  556 

V.  Whelan  225 

McNamara  v.  Ellis  106 

McNeil  V.  Bean  311 

McNeill  V.  Glass  245 


Section 
McNeill  V.  Roache  585 

McPhail  r.  Hyatt  711 

Mil'herson  v.  Snowden  4  a,  509  a 

McQueen  v.  Middletown  Man.  Co.     79 
McRae  v.  Austin  321 

V.  McLean  327,  331 

McReady  v.  Rogers  175,  426 

McRee  V.  Brown  659 

McReynoldsw.  Neal  87,  113 

McWhorter  v.  Beavers  89  a 


M. 

Mace  V.  Heald  667 

IMack  V.  Parks  252 

Mackey  v.  Hodgson  665 

Macomber  r.  Doane  611 

V.  Wright  560 

Maduel  v.  Mousseaux  651,  657 

Magee  v.  Callan  315 

Magne  v.  Seymour  294 

Maher  v.  Brown  523 

Mahnke  v.  Damon  170  a 

Maine  F.  &  M.  Ins.  Co.  v.  Weeks 

463,  481,  541 

Malcom  v.  Spoor  200 

Maley  v.  Barrett  185  a 

Malley  v.  Altman  452 

Malone  v.  Lindley  67 

V.  Samuel  216 

Mamlock  v.  White  185 

Manchester  v.  Burns  480 

V.  McKee  5 

V.  Smith  594 

Mandel  v.  Peet  39,  94,  107,  120, 

134,  399 
Mandeville  r.  Welch  611 

Mankin  v.  Chandler  5,  706 

Manley  v.  Headlev  94 

Mann  v.  Buford    '  464,  515,  659 

Manny  v.  Adams  245 

Mansard  v.  Daley  526 

Mansfield  v.  N.  E.  Express  Co.  636  a 
Manton  v.  Poole  95 

Mantz  V.  Hendley  87,  93,  108,  131 
Manufacturers'  Bank  v.  Osgood  684 
Maples  V.  Tunis  87,  88,  90 

Marion  v.  Faxon  248 

Maris  v.  Schermerhorn  211 

Marks  V.  Reinberg  653  a 

Marlin  v.  Kirksey  614 

Marnine  v.  Murphy  139 

Marsh  V.  Backus  196 

V.  Davis  599,  717 

Marshall  v.  Alley  95 

».  Betner  730,  744,  745 

V.  G.  G.  R.  R.  &  B.  Co.  550 


INDEX  TO   CASES   CITED. 


xlvii 


Section 

Marshall  v.  ^Marshall 

291 

V.  Town 

431 

V.  White 

10,  36 

Marston  v.  Carr 

481 

V.  Carter 

247 

Martin  v.  Branch  Bank 

79 

V.  Dryden      221,  224,  229,  436 

V.  Foreman  453 

V.  Michael  225 
V.  Mobile  &  O.  R.  R.  Co.      80 

V.  Potter  605 

V.  Thompson  116,  139 

Marty,  In  re  13 

Martz  V.  Detroit,  F.    &  M.  Ins. 

Co.  551 

Marvel  v.  Houston  496,  545  a 

Marvin  v.  Hawley  506 

Mason  v.  Ambler  594 

V.  Anderson  207,  216 

V.  Briggs  376 

V.  McCampbell  653 

V.  Noonan  703  a 

V.  Watts  294 

Mass.  Nat.  Bank  w.  Bullock  457 

Massey  v.  Scott  5,  437 

V.  Walker  420 

Matheny  v.  Galloway  697 

Matheson  v.  Rutledge  527 

Mathews  v.  Park  490 

Mathis  V.  Clark  679 

Matthews  w.  Ansley  187,417 

V.  Houghton  708 

V.  Sands  696 

Mattingly  v.  Boyd    453,  665,  683,  700 

Maude  v.  Rodes  5 

Maxfield  v.  Scott  372 

Maxwell  V.  McBrayer  10 

V.  McGee  246 

V.  Stewart  5,  222 

May  V.  Baker  457,  547 

V.  Courtnay  419 

V.  Gamble  134  6 

Mayer  v.  Chattahoochie  Nat.  Bank  525 

Mayfield  v.  Cotton  742  a 

Mayhew  v.  Davis  684  a 

V.  Dudley  98,  99 

V.  Scott  517 

Meacham  v.  McCorbitt  481,  551,  659, 

660,  667 

Meade  v.  Smith  196 

Means  r.  Osgood  219 

Mears  v.  Winslow  221,  263 
Mechanics    and   Traders'    Bk.    v. 

Dakin  225 
Mechanics  and  Traders'  Bank  v. 

Hudge  512 

Meeker  v.  Sanders  651 

V.  Wilson  223 


Section 

Megee  v.  Beirne  5 

Meggs  V.  Shaffer  405,  406 

Meldrum  v.  Snow  246 

Melton  0.  Troutman  743 

Melville  V.  Brown  225,  248 

Memphis  v.  Laski  516 

Memphis  R.  R.  Co.  v.  Wilcox  414 

Mense  v.  Osbern  409 
Merchants'  M.  I.  Co.  v.  Brower       244 

Meriam  v.  Rundlett  708 

Merrick  v.  Hutt  222 

Merrill  V.  Curtis  201,  368 

V.  Low  104 

V.  Sawyer  258 

Mersereau  v.  Norton  248 

Merwin  v.  Chicago  516 

Messner  v.  Hutchins  133 
V.  Lewis               133,  200,  208 

Metcalfv.  Clark  81,  193 

V.  Steele  460 

V.  Young  174 

Metzner  v.  Graham  251 

Meuley  v.  Zeigler  207,  237 

Michael  v.  Thomas  168 

Middlebrook  v.  Ames  49,  399 

Miere  v.  Brush  144 

Millar  v.  Babcock  448 

Millaudon  v.  Foucher  108 

Mill-Dam  Foundery  v.  Hovey  12 
Milledgeville  Man.  Co.  v.  Rives       287 

Miller  v.  Adsit  367 

V.  Baker  193 

V.  Bannister  185  a 

V.  Brinkerhoff  88 

V.  Chandler  418 

V.  Clark  285,  381 

V.  Desha  339 

V.  Dungan  6 

V.  Hooe  474 

V.  Hubbard  611 

V.  McLain  706 

V.  McMillan  207 

V.  Munson  107  a 
V.  Richardson          464,  489,  572 

V.  Shacklelord  212,  213 

V.  Sharp  5 

V.  Spreeher  420 

Milliken  v.  Loring  717 

Millison  V.  Fisk  494 

Mills  V.  Block  225 

V.  Camp  258 

V.  Find  lay  25 

V.  Martin  85 

V.  Stewart  706,  720 
Mims  V.  Parker                 550,  583,  659 

V.  West  588 

Minard  v.  Lawler  624 

Minchin  v.  Moore  639 


xlviii 


INDEX  TO   CASES   CITED. 


Section 

Mineral  Point  R.  R.  Co.  v.  Keep  79, 

80 

Mines  v.  Pyle  694 

Minga  v.  Zollicoffor  10 

Mitchell  V.  Byine  245,  535 

V.  Gooch  384 

V.  Ilinnian  349,  367 

V.  ISIattingly  173,  732 

V.  Merrill  334 

V.  Shook  11 

V.  Skinner  418 

V.  United  States  68 

V.  Watson  459  a 

Mobile  V.  Rowland  516 

Mobile  &  Ohio  K.  R.  Co.  v,  Wbit-_ 

ney  674  a 

Mobley  v.  Lonbat  570 

Mock  V.  King  496,  498 

Monroe  v.  Bishop  27 

V.  Cutter  321 

Montague  v.  Gaddis  70  a 

Monte  AUegre,  The  89  a 

Monterey  v.  McKee  27 

Montgomery  v.  Tilley  69 

Moon  V.  Hawks  254 

V.  Story  342 

Mooney  v.  Kavanaugh  288 

Moor  V.  Towle  465,  647 

Moore  v.  Angiolette  408 

V.  Chattanooga  516 

V.  C.  R.  I.  &  P.  R.  Co.         697 

V.  Coates  205 

V.  Dickerson  28 

V.  Fargo  374,  376,  377 

V.  Gennett  5,  244,  480 

V.  Graves  267 

V.  Greene  589 

V.  Hawkins  405,  406 

V.  Holt  27  a,  63,  224,  453,  455 

V.  Kidder  237,  454 

V.  Lowrey  665 

V.  INIauck  113 

V.  Murdock  245 

V.  Pillow  481 

V.  Spackinan  706 

V.  Stainton  452 

V.  Stanley  440 

V.  Thayer  422 

V.  Westervelt  292 

V.  Withenburg  158,  251 

Moores  c.  White  81 

Morange  v.  Edwards  323 

Moreland  v.  Ruffin  216 

Morey  v.  Sheltus  545 

Morgan  v.  Avery  43,  47,  400 

V.  Dyer  85 

V.  Furst  339,  340 

V.  Ide  246 


Section 

Morgan  v.  Johnson 

95 

V.  Neville 

474, 

706,  711 

v.  Woods 

441 

Morrill  v.  Brown 

481 

V.  Keyes 

199 

Morris  v.  Hall 

333  a 

V.  Ludlam 

723 

V.  Penniman 

506 

V.  Price 

176 

V.  Trustees 

144,  213 

Morrison  v.  Alphin 

317 

V.  Blodgett 

381,  387 

V.  Fake 

99, 

101,  102 

V.  Lovejoy 

100 

V.  N.  B.  Institution 

713 

V.  Ream 

95 

Morrow  v.  Weed 

89  b 

Morse  v.  Bet  ton 

299 

V.  Hodsden 

327  a 

V.  Holt 

482 

V.  Hurd 

198, 

256,  392 

V.  Marshall 

659 

V.  Presby 

85,  89  b 

V.  Smith 

210,  271 

Morton  v.  Pearman 

27 

V.  Webb 

701 

Moser  v.  Maberry 

679 

Mott  V.  Lawrence 

100 

V.  Smith 

731 

Moulton  V.  Chadborne 

344 

V.  Chapin 

381 

388,  393 

Mowrey  v.  Crocker 

605 

Moyer  v.  Lobengeir 

711 

Muir  V.  Schenck 

608 

Mulhall  V.  Quinn 

613 

Munroe  v.  Cocke 

104 

V.  Luke 

241 

Murphy  v.  Baldwin 

67 

V.  Crew 

429 

V.  Higginbottora 

89  a 

Murray  v.  Cone 

93,  131 

V.  Eldridge 

262 

V.  Gibson 

224 

V.  Shearer 

323 

Murrell  v.  Johnson 

509,  650 

Muskett  V.  Drummond 

85 

Myatt  V.  Lockhart 

n       /-, 

525,  654 

T    .     . 

Myer  v.  Liverpool   L.   &  G.  Ins. 

Co.  458,  478 

Myers  v.  Baltzell  672 

V.  Beeman  588 

V.  Farrell  108  a,  175 

V.  Lewis  93,  131 

V.  Mott  244,  422 

V.  Myers  193,  251 

V.  Perry  318 

V.  Smith  317,  570,  658  c 

V.  Urieh  711 


INDEX  TO  CASES   CITED. 


xlix 


Nailor  «.  French 
Nancarrow  v.  Young 
Napper  v.  Noland 
Nash  V.  Brophy 

V.  Farrington 
V.  Mallory 


Sect'on 

63 

326 

108 

674  e 

195,  244  a 

187  b 


Nashville  Bank  v.  Ragsdale  244 

Nason  v.  Esten  193 

Nathan  v.  Giles  223,  533,  700 

National  Bank  v.  Titsworth  695 

Naylor  v.  Dennie  256 

Ne'ally  v.  Ambrose  640 

V.  Judkins  184  a 

Near  v.  Mitchell  700 

Neilson  v.  Scott  650 

Nelson  v.  Conner  509  a 

V.  Murch  105  a 

Nesbitt  V.  Campbell  683 

V.  Ware  645 

Nesmith  v.  Drum  628 

Neuer  t?.  O'Fallon  487,614 

Nevins  v.  Rockingham  M.  F.  I.  Co.  669 
Newby  v.  Hill  614 

Newell  V.  Adams  678 

V.  Blair  528,  650 

V.  Ferris  671 

New  England  M.  I.  Co.  v.  Chand- 
ler 490 
New    England     Screw     Co.      v. 

Bliven  703  b 

New  Hampshire  I.  F.  Co.  v.  Piatt  481 
New  Haven  Saw-Mill  Co.  v.  Fow- 
ler 13  a,  508 
Newlin  v.  Scott  662 
Newman  v.  Kane  302 
New  Orleans  v.  Garland  108 
New  Orleans  C.  &  B.  Co.  v.  Comly  45 
New  Orleans  M.  &  C.  R.  R.  Co.  v. 

Long  675 

Newton  v.  Adams  200,  256 

Nichols  V.  Patten  210,  256,  290 

V.  Schofield  464,  557 

V.  Valentine  244  b,  291 

Nickerson  v.  Chase  483,  688 

Noble  V.  Holmes  185  a,  225 

V.  Merrill  658  b 

V.  Smith  605 

V.  Thompson  Oil  Co.  .  527,  706, 

710  a 

Noien  V.  Crook  533 

Nolle  V.  Thompson  162  a,  729 

Norcross  v.  Benton  684 

Norris  v.  Bridgham  393 

V.  Bin-goyne  6(17 

V.  Hall  666,  708 

V.  Watson  249 


Section 

North  V.  McDonald  54  a 

Northam  v.  Cartwright  605,  608 

Northern  Central  R.  Co.  v.  Rider  451  b 

Northwestern  Ins.  Co.  v.  Atkins      549 

Norton  v.  Kearney  185  a 

V.  People  367 

r.  Piscataqualns.  Co.    604,609 

V.  Winter  622 

Norvell  v.  Porter  451  d 

Noyes  v.  Brown  614 

V.  Butler  87  a 

Nugent  V.  Opdyke  C07,  630 

Nutter  V.  Connett  221,  263 

Nye  V.  Liscomb  474 


o. 


Oakey  v.  M.  &  A.  Railroad  Co.        653 

Oakley  v.  Aspinwall  5 

O'Brien  v.  Daniel  96 

V.  Liddell  624,  627 

V.  Norris  245 

O'Connor  v.  Blake  228 

V.  O'Connor  697 

Odiorne  v.  Colley    256,  267,  269,  291, 

353,  356 
Odom  V.  Shackleford  36 

Oestrich  v.  Greenbaum  196 

Oeters  v.  Aehle  300 

O'Farrell  v.  Stockman  116 

OtFutt  i;.  Edwards      52,  158,  175,  176, 

408 
Ogilvie  V.  Washburn  37  a 

O'Grady  v.  Julian  730  a,  745 

Ohio  Life  Ins.  &  Tr.  Co.  v.  Urbana 

Ins.  Co.  219 

Ohio  &  M.  R.  W.  Co.  V.  Alvey   676  a, 

697,711 
Ohors  V.  Hill  249 

Oldham  v.  Ledbetter       676,  696,  711, 

717 

V.  Scrivener        221,  222,  229, 

267 

Olin  V.  Figeroux  706 

Oliver  Jordan,  The  251 

Oliver  v.  Atkinson  659 

V.  C.  &  A.  R.  R.  Co.  472 

V,  Gwin  318 

W.Lake  245,517 

V.  Smith  511 

V.  Wilson  48,  52,  147 

Olney  v.  Shepherd  204 

O'Neal  V.  Owens  124 

V.  Wilson  89  a 

O'Neil  V.   N.  Y.  &  S.  P.  Mining 

Co.  in 

Orear  v.  Clough  112 


INDEX  TO   CASES   CITED. 


Section 

Section 

OritMital  Rank  v.  T.  Ins. 

Co. 

704 

Parmole  v.  McLaughlin 

246 

Ormoiid  r.  ^loye 

588,  59-i 

Parineiitcr  v.  Childs 

658  e 

Onnslioc  r.  Davis 

656 

Parmer  v.  Ballard 

697,  713 

Ornisbv  v.  Anson 

638 

Parsons  v.  JMcCjavock 

616 

Orr  V.  Mcl>ri(le 

251,  508 

V.  Paine 

441  a 

Orton  V.  Nooiian 

400 

V.  Root 

686 

Osborn  r.  SchifllT 

123,  409 

V.  Stockbridge 

102 

OsboriR'  V.  Jordan 

667 

V.  Strong 

394 

Ospjood  r.  Holyoke 

184  « 

Paschail  v.  Whitsctt 

424 

Otis  V.  Fovd 

653 

Patrick  v.  INlontader 

275 

V.  Ilitihcock 

85 

Patten  v.  Wilson 

604 

V.  Jones 

185  c 

Patterson  v.  Harland 

639 

Overton  v.  Hill 

506 

V.  IVIcLaughlin 

81 

Owen  V.  Dixon 

225 

V.  Perry 

671 

V.  Estes 

517 

Patton  V.  Gates 

599 

r.  Jordan 

85 

V.  Smith 

541 

Owens  V.  Johns 

91  a,  120 

Paul  V.  Hussey 

89  6 

I'.  Starr 

117,  185 

V.  Johnson 

674  c 

Owinps  r.  Norwood 

222 

V.  Paul                       463 

641,  548 

Oy.<tea<l  v.  Shed 

249 

V.  Reed 

545 

Ozuiore  r.  Ilood 

224 

V.  Slason 
Pawley  v.  Gains 
Pawling  V.  Bird 

203 

606 

5 

P. 

Paxson  V.  Sanderson 
Paxton  V.  Steckel 

491 
198,  204 

Paddock  v.  Palmer 

,396 

Payne  v.  Able                        323  h,  341  b 

Page  V.  Belt 

190 

V.  Mobile 

612,  667 

V.  Crosby 

627 

V.  Snell 

318 

V.  Ford 

132 

Peace  v.  Jones 

557 

J'.  Generes 

205 

Peacock  r.  Pembroke 

247 

V.  Jewett 

282,  285 

V.  Wildes 

81 

V.  Long 

338 

Pearce  v.  Baldridge 

208 

V.  Thompson 

607 

V.  Shorter 

481 

V.  Thrall 

345,  372 

Pearson  v.  Gayle 

120 

Paihles  v.  Roux 

318 

Pearsons  v.  Tincker 

374 

Paine  i'.  Parr 

204,  210  a 

Peck  V.  Barnum 

477,  562 

V.  Mooreland 

437,  448 

V.  J  en  n  ess 

425 

Pahner  v.  Bosher 

113 

V.  Sdl 

282 

V.  Hooks 

702 

V.  Stratton 

460  a 

V.  Thayer 

212 

,  213.  218 

V.  Walton 

588 

Paneost  v.  Washington 

4-i2 

V.  Webber 

223,  224 

Paradise  v.  F.  &  M.  Ba 

nk 

193,  251 

V.  Whiting 

225 

Paraniore  v.  Pain 

723 

Peeler  v.  Stebbins 

194 

Park  V.  Matthews 

490 

Peet  V.  IMcDaniel 

648 

Parker  v.  Danforth 

662,  563 

V.  Whitman 

660 

V.  Donally 

496 

Peirce  v.  Partridge 

282 

V.  Farr          223, 

226, 

317,  453, 

Peiser  v.  Cushman 

134 

453  h 

Pellman  v.  Hart 

608 

V.  Ciiiillow 

666 

Pendleton  v.  Perkins 

225,  616 

V.  Kinsman 

453 

Penhallow  v.  Dwight 

249 

V.  Overman 

87?; 

Pennebaker  v.  Tomlinson 

616  a 

V.  Page 

633 

Pennell  v.  Grubb 

686,  687 

V.  Parker           226.  453.  453  h, 

Penniman  v.  Haggles 

487 

658  hh,  674  a 

Pennoyer  v.  Nelf 

5,  449 

V.  Porter 

252  a 

Penobscot   Broom    Corporation  v. 

V.  Wright 

570 

Wilkins 

390,  392 

Parks  V.  Cushman 

244 

, 247,  497 

People  V.  Cameron            224 

317,  331 

Parmele  v.  Johnston 

107 

V.  Hubbard 

200 

INDEX   TO   CASES   CITED. 


Section 

People  r.  Johnson              525, 

583,  659 

V.  Koeber 

85 

V.  Reoonler 

101 

V.  Schuvler 

196 

V.  Tioga  C.  P. 

610 

Perego  i\  Bonesteel 

251 

Ferine  v.  George 

659 

Perkins  v.  Bragg 

244  a 

V.  Gay 

625 

V.  Norvell 

222,  422 

V.  Parker 

708 

V.  Pitman 

189 

Perley  V.  Foster                  291, 

367,  371 

Perminter  v.  M'Daniel 

121 

Perrin  v.  Claflin 

196 

V.  Leverett 

236 

Perrine  v.  Evans 

67 

Perry  v.  Carr 

200 

V.  Coates 

481 

V.  Thornton 

457,  502 

V.  Washburn 

684  a 

Peter  v.  Butler 

16 

Peters  v.  Conway 

187  & 

V.  League 

658  e 

Pettes  V.  Marsh 

379 

V.  Spalding 

561 

Peftingill  v.  A.  R.  R.  Co. 

465  a 

Pfttt.it,  n.  IMercer        154.  156. 

170.  174. 

175,  178,  726 

Pfoutz  V.  Comford  62 

Phelps  V.  Baker  5 

V.  Boughton  451  b 

V.  Campbell  311 

V.  Coggeshall  176 

V.  Gilchrist    344,  373,  376,  377 

V.  Holker  5 

V.  Young  96 

Philips  V.  Hines  317 

Phillips  V.  Bridge  347,  357,  362 

V.  Germon  658  b 

V.  Hall  381 

V.  Harvey  342 

V.  Orr  53  a 

Phillipsburgh  Bank  v.  L.  R.  R.  Co.    80, 

402 
Pickering  v.  Wendell  247,  489 

Pickler  v.  Rainey  650,  659 

Picquet  v.  Swan       245,  499,  539,  659, 

683 

Pierce  r.  Boston  684  a 

V.  Carleton   508,  583,  659,  696, 

697,  711 

V.  Chicago  &  N.  R.  Co.         480 

V.  Jackson  244 

V.  Strickland         206,  208,  209, 

361,  362 

Picrse  v.  Smith  100 

Pierson  v.  Ilovey  351,  353 


Pierson  «.  McCahill 

V.  McCormick 
V.  Robb 
V.  Weller 

Pike  V.  Pike 

Pillsbury  v.  Small 

Pinney  v.  Hershfield 

Pinson  v.  Kirsh 


Section 
701 
512 
224 
490 
275 
292  a 
1G8 
175 

Pioneer  Printing  Co.  v.  Sanborn      659 
Piper  V.  Piper  463,  500,  541 

Piscataqna  Bank  v.  Turnley  10 

Pitts  V.  Burroughs  52,  742 

V.  Mower  607,  630 

Plaisted  v.  Hoar  388 

Plant  V.  Smythe  234 

Planters'  Bank  v.  Byrne  141 

V.  Walker  212 

Planters  &  Merchants'  Bank  v.  An- 
drews 79,  127,  147,  418  a,  697 
Planters    &   Merchants'    Bank   v. 

Leavens  471,  472 

Platen  v.  Byck  658  e 

Piatt  V.  Brown  200 

Plumb  V.  Woodmansee  176 

Plummer  v.  Rundlett  465 

Plumpton  V.  Cook  128 

Poage  V.  Poage  108 

Poe  V.  St.  Mary's  College  517 

Pogue  V.  Joyner  335 

Pollard  V.  Ross  506 

PoUey  V.  Lenox  Iron  Works  198,  210, 

258,  291 
Pomroy  v.  Kingsley  290,  292  a 

V.  Parmlee  193 

Pond  V.  Griffin  221,  229,  263 

V.  Skidmore  258 

Ponton  V.  Griffin  614 

Pool  V.  Webster  93,  94 

Poole  V.  Symonds  291,  367 

Poor  V.  Colburn  553  a 

Pope  V.  Hibernia  Ins.  Co.      36  a,  113, 

696 
141 
35 
610,  614 
237 
263 
10 
461,  659 
11 
323 
559,  594 
252 
67 
225 
392 
245 
193 


V.  Hunter 

Porter  v.  Brooks 
V.  BuUard 
V.  Byrne 
V.  Earthman 
V.  Hildebrand 
V.  Stevens 

Posey  V.  Buckner 

Poteet  V.  Boyd 

Potter  V.  Cain 
V.  Hall 
V.  Kitchen 
V.  Mather 
V.  Scwall 

Powell  V.  Aiken 
V.  McKee 


lii 


INDEX   TO   CASES   CITED. 


Section 

Powell  V.  IMattbews  78 

V.  Saimnoiis        545,  659,  G89  a 

Powers  V.  Hurst  lOS 

Poydras  I'.  Delaware  611 

Pratt  V.  CunlifF  697 

V.  Whei'ler  2.57 

Prentiss  v.  Bliss  244,  251,  505 

V.  Danaher  630  a 

Prcscott  V.  Hull  607,  717 

V.  Parker  622,  665 

Pressley  v.  McDonald  247 

Pressnall  v.  Mabry  545,  583,  659 

Preston  i».  Cooper  726 

Prewitt  V.  Carmichael  10 

Price  V.  Bradford  599 

V.  Brady  481,  588 

V.  Hifrgins  459,  663,  673 

V.  Kennedy  339 

V.  Mazange  664 

V.  Merritt  28,  95 

Pringle  v.  Black  81 

V.  Carter  85 

Probate  Court  v.  Niles  247 

Proseus  v.  Mason  460 

Proskey  r.  West  126,  145 

Prout  V.  Grout  662 

Providence  Co.  Bank  v.  Benson       604 

Provis  V.  Cbeves  245 

Puffer  V.  Graves  707 

PuUiam  v.  Aler  674  a 

Purcell  V.  Steele  329 

Putnam,  Ex  parte  420 

V.  Hall  219,  284 

Putney  i\  Farnbam  614 

Pyle  V,  Cravens  442 


Q. 

Quarles  v.  Porter 

.  V.  Robinson 

Quip:g  V.  Kittredge 
Quillen  V.  Arnold 
Quine  v.  Mayes 


R. 


586,  589 

104 

464,  665 

325  a 

318,  389 


Raiguel  V.  McConnell  481 

Ralpb  V.  Nolan  275 

Rand  v.  Sargent  198 

V.  Wbite  Mountain  R.  R.         548 

Randall  v.  Way  491  a 

Kandolpb  v.  Carlton  224 

V.  Heaslip  662 

Rankin  r.  Dulaney  205 

V.  Simonds       653,  658  «,  683, 

689  a 


Section 
Ranlett  v.  Blodgctt     189,  189  a,  253  a 
Raiuiing  v.  Reeves  130,  170 
Ransom  v.  Hal(;ott  190 
V.  Hays  648 
V.  Williams  85,  87  b 
Raspillier  v.  Brownson  162 
Ratlibone  v.  Ship  London  317 
Raver  v.  Webster                10,  173,  743 
Ray  V.  Faulkner  526 
V.  Underwood  474 
Raymond  v.  Bell  89  b 
V.  Rockland  Co.  470 
Rayne  v.  Taylor  -67 
Raynes  v.  Lowell  I.  B.  Society        487 
Rea  V.  Lewis  729 
Read  v.  Sprague  251 
V.  Ware  28,  408 
Reagan  v.  Kitchen  335 
V.  Pacific  Railroad        461,  659 
Reams  v.  McNail  185 
Redd  V.  Burrus  525 
Reddick  v.  Smith  251,  505 
Reding  v.  Ridge  108 
Redus  V.  Wofford         36,  91,  221,  229 
Redwood  V.  Consequa  14,  24 
Reed's  Appeal  62 
Reed  I'.  Bank  of  Ky.  123 
V.  Beach  10 
V.  Ennis  275 
V.  Howard  248 
V.  Ketch  63 
V.  Ownby  234 
V.  Perkins  204 
V.  Samuels  158 
Reeves  v.  Clark  85 
V.  Comly  45 
V.  Johnson  223 
V.  Townsend  89  b 
Reid  V.  McLeod  564  a 
Reidhar  v.  Berger  175,  178 
Reiss  V.  Brady  418 
Remick  v.  Atkinson  394 
Remmington  v.  Cady  248 
Renneker  v.  Davis  453 
Repine  v.  McPherson  207,  449 
Reubens  v.  Joel  225 
Reyburn  v.  Brackett  98 
Reynolds  v.  Bell  420 
V.  Culbreath  172 
V.  Jordan  317 
V.  McKinney  520 
Rhoads  v.  Woods  297 
Rhode  Island  v.  Massachusetts     85,  86 
Rhode  Island  Ex.  Bank  v.  Hawk- 
ins 658  e 


Rice  V.  Beers 

34 

V.  Wilkins 

303,  361 

Rich  V.  Bell 

309 

INDEX  TO    ( 

Section 

Rich  V.  Reed 

659 

V.  Waters 

551 

Richard  o.  Mooney 

332,  342 

Richards  v.  Allen 

490 

V.  Da<rgett 

195 

V.  Griggs 

497,  607 

V.  Stephenson 

461 

V.  Storer 

325 

Richardson  v.  Gurney 

643 

V.  Hall 

196 

V.  Hickman 

711 

V.  Lacey 

465  a 

V.  White 

633  a 

V.  Whiting 

489 

Richter  v.  Wise 

95 

Riddle  v.  Etting 

673 

Ridgway  v.  Smith 

70 

Ridley  V.  Ridley 

436 

Ridlow  V.  Cressey 

411 

Riley  v.  Hirst 

464,  515 

Rinchey  v.  Stryker 

185  a,  225 

Ripley  v.  Severance 

465,  523 

Risewick  v.  Davis 

59  a,  65 

Risley  V.  Welles 

465 

Rittenhouse  v.  Harman 

106 

Ritter  v.  Scannell 

204 

Rives  V.  Wilborne 

331 

Rix  V.  Elliott 

561 

Robbins  v.  Bacon 

610 

Robert  v.  Hodges 

225 

Roberts  v.  Barry 

460 

V.  Burke 

86 

V.  Drinkard 

551 

V.  Dunn 

251,  267,  339 

Robertson  v.  Beall 

508 

V.  Forrest 

221,  231,  255, 

CASES   CITED. 


liii 


263 
V.  Kinkead  207 

V.  Roberts  696,  711 

V.  Scales  525 

Robeson  v.  Carpenter  707 

V.  M.  &  A.  Railroad  Co.  660 

Robinson,  Ex  parte  87,  100 

V.  Burton  104,  113 

V.  Ensign  267 

V.  Hall  560,  667,  674  a 

V.  Holt  199 

r.  Howard  506 

V.  Mansfield  197,  367,  369, 
392 
V.  :Mitchell  675 

V.  Rapelye  653 

V.  Starr  658  b 

V.  Tevis  570 

V.  Ward  5 

V.  Woelpper  247 

Roby  V.  Labuzan  667 

Rochefeller  v.  Iloysradt  125 


Section 

Rochereau  v.  Guidry  676  a,  711 

Rockwood  V.  Varnuin  263,  270 

Rodgers  v.  Bonner  221,  236 

V.  Hendsley  602 

V.  Smith  89  a 

Roelofson  v.  Hatch  22 

Rogers  v.  Coleman  87  a 

V.  Ellis  101 

V.  Fairfield  269 

V.  Pitman  725 

Rollo  V.  Andes  Ins.  Co.  616  a 

Ronkendorlf «;.  Taylor  87  b 

Rood  V.  Scott  351,  353,  3.S2 

Roosevelt  v.  Kellogg  59 

Root  V.  Monroe  123 

Roquest  v.  Steamer  B.  E.  Clark 

639  a,  643 

Rose  V.  Whaley  460,  650,  658  e 

Rosenfield  v.  Howard  75 

Ross  V.  Austin  665 

V.  Clark  52 

V.  Clarke  251,  509 

V.  Edwards  251 

V.  M'Kinny  653 

V.  Philbrick  291 

V.  Pitts  706 

V.  Ross  471 

Roulliac  V.  Rigby  146 

Rowan  v.  Lamb  85,  89  b,  207 

Rowe  V.  Page  351 

Rowell's  Case  425 

Rowlett  V.  Lane  460 

Rowley  v.  Berrian  449  a 

V.  Rice  200 

Roy  V.  Heard  451  6 

Rudd  V.  Paine  614 

Rudolf  r.  McDonald  262,  273 

Rundlet  V.  Jordan       463,  481,   541, 

548 

Runlett  V.  Bell  344,  363 

Runyan  v.  Morgan  71,  107 

Rushton  V.  Rowe  065 

Russ  V.  Butterfield  204,  210  a 

Russell  V.  Clingan  551 

V.  Convers  594 
V.  Freedman's  Saving  Bank 

658  e 

V.  Hinton  679 

V.  Lewis  490,  647,  648 

V.  Perry  87  a 

V.  Tunno  605 

V.  Wilson  69 
Ruthe  V.  Green  Bay  &  M.  R.  R. 

Co.  92,  95 

Ryall  V.  Marx  733 

Ryder  v.  Hathaway  199 

V.  Thomas  168 

Ryon  V.  Bean  112 


liv 


INDEX   TO   CASES    CITED. 


s. 

Sabin  v.  Cooper 
Sackett  v.  iMcCord 
Saco  V.  llopkiiitoii 
Saddk'sveiie  v.  Anns 
SalFaracus  v.  Bennett 
Sagely  v.  Livermore 
Sampson  r.  llvde 
Samuel  v.  A<inew 

I'.  Brite 
Sanborn  v.  Buswell 
Sanders  v.  Hughes 


Section 

551,  560,  561 

173 

184  a 

10 

446 

299 

63-1,  656,  683 

245 

116,  139 

376 

154,  726 


Scofield  V.  Sanders 
Scott  V.  Brighara 

V.  Crane 

V.  Doneghy 

V.  Hill 

V.  McMlUen 

V.  Macy 


Sanderson  v.  Edwards  290,  292  b,  292  e, 

360 

Sandidge  r.  Graves  522 

Sands  V.  Matthews  611 

Sanford  v.  Bliss                  659,  660,  (367 

V.  Boring  290 

V.  Pond  388 

Sangster  «;.  Butt  715 

V.  Commonwealth  196 

Sappington  v.  Oeschli  234 

Sargeant  v.  Andrews  708 

V.  Helmbold  10 

Sargent  v.  Carr  245,  539 

Sartin  v.  Wier  339 

Saulter  v.  Butler  I'll 

Saunders  v.  Columbus  L.  I.  Co.  207,  239 

Savage's  Case      _  702,  708 

Savery  v.  Browning  234 

Sawyer  v.  Arnold  107 

V.  Iklason      388,  389,  392,  395 

V.  Merrill  199 

V.  Tliompson  474 
V.  Webb                     642,  658  d 

Sayward  v.  Drew               651,  557,  667 

Scales  V.  Scott  225 

V.  Swan  633 

Scanlan  v.  O'Brien  336,  339 

Schacklett  &  Clyde's  Appeal  224,  229 

SchaefferiJ.  Marienthal  291 

Schatzill  V.  Bolton  570 

Scheib  v.  Baldwin  191  b 

Schepler  v.  Garriscan  245 

Sehiiidler  v.  Smith  451  b 

Sclilater  v.  Broaddus  318 

Schlemmer  v.  Myerstein  406  a 

Schlussell  V.  Willet  225 

Scholefield  v.  Bradlee  251,  463 

Scholtield  V.  Bell  246 

Schoonmaker  v.  Spencer  100 

Schoppenliast  v.  Bollman  697 

Sehrimpfy.  McArdle  129,  737 

Schroeder,  Matter  of  49 

Schuyler  v.  Sylvester  831 

Schwab  0.  Gingerick  664 

Schwein  v.  Sims  339 


Section 
537 
244  a,  480 
306 
90  a 
589 
225 
147 


V.  Manchester  Print  Works     239 

V.  Ray  656 

V.  Whittemore  372,  381,  386,  389 

Seamon  v.  Bank  687 

Searcy  v.  Platte  County  409 

Searle  v.  Preston  227 

Sears  v.  Gearn  ^     248 

V.  Terry  85,  87  a 

Seay  v.  Greenwood  157,  176 

Sebor  v.  Armstrong  634,  656 

Seeley  v.  Brown  288 

Self  V.  Kirkland  686,  689 

Selma  K.    &   D.    R.    R.    Co.    v. 

Tyson  478 
Senecal  v.  Smith       154,  158,  726,  732 

Sessions  v.  Jones  336 

V.  Stevens  708 

Sevier  v.  Throckmorton  654 

Sewall  V.  Franklin  333 
V.  Mattoon             302,  309,  311 

V.  NichoUs  245 

Seward  v.  Hetiin  714,  717 

Sewell  V.  Savage  221,  263 

V.  Soules  3jS6 

Sexey  v.  Adkinson  18o  a 

Seymour  v.  Kramer  465 

V.  Newton  245 

Sliadduck  V.  Marsh  402 

Shaffer  v.  Mason  10 

V.  Sundwall  90  a 

Sharp  V.  Clark  507,  622 

V.  Speir  87  b 

Sharpe  v.  Hunter  157,  170 

Shattuck  V.  Smith  531 

Shaughnessy  v.  Fogg  641 

Shaver  v.  White  729 

Shaw  V.  Bunker  634 

V.  Holmes  185,  189 

V.  Laughton  373,  385 

V.  Peckett  684  a 

Sheafe  v.  Sheafe  225 

Shealy  v.  Toole  701 

Shearer  v.  Handy  656 
Sheedy  v.  Second  Nat.  Bank        451  a, 

457,  570 

Sheets  v.  Culver  585,  588 

Sheetz  v.  Hobensack  671 

Sheldon  v.  Newton  89  b 

V.  Root  244 

V.  Simonds  679 

Shephard  v.  Butterfield  256 


INDEX   TO   CASES   CITED. 


Iv 


Section 
Sheppard  v.  Collins         151,  327  a,  329 

Sherrod  v.  Davis  428 

Sherry  v.  Schuyler  185  c 

Sherwood  v.  Keade  87  b 

Shetler  v.  Thomas  675 

Shewell  v.  Keen  499 

Shinn  v.  Zimmerman  622 

Shipman  v.  Woodbury  C2 

Shipp  V.  Davis  101 

Shirley  v.  Byrnes  817 

Shivers  v.  Wilson  90,  696 

Shockley  f.  Davis  139 

Sliort  V.  Moore  247 

Shove  V.  Dow  263,  264 

Slirewsbury  v.  Pearson  404 

Shriver  v.  Harbaugh  189 

V.  Lynn  87  a 

ShufFu.  Morgan  196 

Sliiigart  V.  Orr  49,  60 

Shuler  V.  Bryson  588 

Shultz  V.  Morrison  176 

Shumway  v.  Carpenter  384 

V.  Rutter  199 

V.  Stillnian  85,  87  a 

Shnttlesworth  v.  Noyes  247 

Sias  0.  Badger  210 
Sibley  v.  Brown              189,  199,  253  a 

V.  Fernie  248 
V.  Story         345,  351,  353,  369, 
379 

Sickman  v.  Lapsley  666 

Sigourney  v.  Eaton  263 

Silverwood  v.  Bellar  671 

Simons  v.  Jacobs  45,  408 

V.  AV'hartenaby  546 

Simpson  v.  Bibber  526 

V.  Harry  489 

V.  Knight  132 

V.  Minor  90 

V.  Tippin  524 

Sims  V.  Jacob.-on  196  a 

Sinclair  v.  Tarbox  356,  379 

Singleion  v.  Wolford  91 

Skillinan  v.  Bethany  245 

Skinner  v.  Moore  588 

V.  Stuart  291 

Skinnion  v.  Keiley  99 

Skipper  V.  Foster  624 
Skowhegan  Bank  v.  Farrar       481,  485 

Slate  V.  Barker  256 

Slaiter  v.  Tiernan  658  b 

Siaugiiter  v.  Bevans  87,  99 

Sledge  V.  Lee  166 
V.  McLaren            154,  156,  732 

Sleet  V.  Williams  106 

Sloan  V.  Forse  440 

Small  V.  Hutchins  349 

Smead  v.  Crisfield  31 


Smith  V.  Barker 

V.  Blatchtbrd 


ScctiDn 
620 
576,  581,  5.SS. 
701,  717 
V.  B.  C.  &  M.  Railroad  478,  479, 
667,  682 
V.  Bradstreet  224 

V.  Brown  381,  650 

V.  Bruner  659 

V.  Cahoon  552,  570 

V.  Chad  wick  195,  244  a 

V.  Chapman  550,  583,  659, 

697 
V.  Church  292 

V.  Cicotte  189,  253  a 

V.  Clarke         526,  527,  533,  659 
V.  Cudworth  381 

V.  Dalton  62 

V.  Davis  550 

V.  Durbridge  618 

V.  Eakin  154,  160,  166 

V.  Elliot  418 

V.  Gettinger  275 

V.  Heidecker  654 

V.  Herring  899 

V.  K.  &  P.  R.  R.  Co.  481 

V.  Leavitts  215 

V.  Low  212 

V.  Luce  87,  96,  100 

V.  McCutchen  449,  696 

V.  McMicken  570 

V.  Mitchell  386,  394 

V.  Niles  245 

V.  Orser  256 

V.  Osgood  189 

V.  Painter  89  a 

V.  People's  Bank  235 

V.  Picket  517 

V.  Posey  546 

V.  Riley  81 

V.  Sanborn  199 

V.  Smith  210 

V.  Stearns  670,  685,  688 

V.  Sterritt  608 

V.  Story  62,  154,  160,  170,  726, 
732,  736 
V.  Wadleigh  372 

Smoot  V.  Eslava  717 

V.  Hart  516 

Snead  v.  Wegman  426 

Snediker  v.  Quick  85 

Snell  V.  Allen  222,  224 

Snelling  v.  Bryce  116  a 

Somerville  v.  Brown  589 

Souberain  v.  Renaux  95 

South  Carolina  R.  R.   Co.  v.  Mc- 
Donald 79,  80 
Southern  Bank  u.  McDonald  262,  451  b 
Spaids  V.  Barrett               726,  729,  732 


Ivi 


INDEX   TO   CASES   CITED. 


Spalding  r.  Tnilay 
r.  Simms 
Spaukling  r.  Wallett 
Speak  V.  Kinsoy 
Spear  v.  Hill 

I'.  Hubbard 

V.  King 
Speod  V.  Brown 
Speight  I'.  Broek 
Speise  v.  MeCoy 
Spencer  v.  Blaisdcll 
V.  Deagle 
V.  Williams 
Spengler  v.  Davy 
Spicer  V.  Spicer 
Spooner  v.  Rowland 


Soction 

610  a 

4G,  (U 

72() 

660 

395  a 

'289 

105,  133,  416 

51G 

680 

6-20 

244 

74 

372,  381 

732,  732  a 

620,  701 

674  a 


Spraeue  i'.  11.  P.  &  F.  R,  R.  Co.     80, 

^    ^  479 

V.  Steam  Nav.  Co.  465  n 

V.  Wheatland  384 

Springs.  Aver  663,671,673 

Sproule  V.  McNulty  625 

Spruill  V.  Trader  707 

St.  Amant  i;.  De  Beixcedon  400 

St.  George  v.  O'Connell  198 

St.  Louis  V.  Kegenfuss  694,  660 

St.  Louis  Perpetual  Ins.  Co.  v.  Co- 
hen                           79,  680,  589,  697 

Stackpole  v.  Hilton  374 

V.  Newman  639,  652 

Stacv  V.  Stichton  101 

Stadler  v.  Parinlee  106,  650 

Stahl  V.  Webster  663 

Stamford  Bank  v.  Ferris  259 

Staniels  v.  Raymond  453,  480,  482 

Stanley  v.  Drinkwater  353,  389 

V.  Ogden  10 

Stanton  v.  Holmes  81 

Staples  V.  Fairchild  88,  90 

V.  Staples  464,  506,  515 

Starbuck  v.  Murray  87  a 

Starke  v.  Marshall  96,  187 

Starr  v.  Lyon  282 

V.  Moore  222,  294 

State  V.  Beall  25 

V.  BelUsraeler  170.  176 

V.  Berry  89  b,  150 

V.  Blaekman  174 

V.  Brownlee  625 

V.  Chamberlin  121 

V.  Fitzpatrick  196,  426 

i'.  Foster  186 

V.  Hinthman  89  b 

V.  Krebs  247 

V.  Lawson  244 

V.  Manly  244  a 

V.  Metzger  85 

V.  Moore  196 


State  V.  Ogle 

V.  Shreeve 
V.  'I'lionias 
V.  Tlionipson 
V.  Williams 
State  Bank  v.  Hinton 
Steamboat  Napoleon  v.  Etter 
Stebbins  v.  Fitch 

V.  Peeler 
Stedman  v.  Vickery 
Steel  V.  Smith 
Steiiimetz  v.  Nixon 
Stephen  v.  Thayer 
Stephens  v.  Ely 
Steplienson  v.  Doe 

V.  Walden 
Sterling  City  Mining  Co.  v 
Stetson  V.  Cleneay 
Steuart  v.  West 
Stevens  v.  Briggs 
V.  Fames 
V.  Gwathmey 
V.  Pugh 
V.  Stevens 
Stevenson  v.  McLean 
V.  Prather 
V.  Robbins 
Stewart  v.  Cole 
V.  Dobbs 
V.  Katz 
V.  Martin 
V.  Platts 
Stiokley  v.  Little 
Stickney  v.  Davis 
Stiles  V.  Davis 
St  die  V.  Layton 
Stilhnan  v.  Ishara 
Stills  V.  Harmon 
Stimpson  v.  Maiden 
Stimson  v.  Ward 
Stoekley  v.  Wadman 
Stockton  V.  Downey 

V.  Hall 
Stoddart  v.  McMahan 
Stone  V.  Anderson 
V.  Dean 
V.  Magruder 
V.  Miller 
V.  Swift 
Stoney  v.  IMcNeill 
Stouffer  V.  Niple 
Stout  V.  Folger 

V.  Leonard 
Stoutenburgh  v.  Vandenburgh 
Stratton  v.  Brigham 

V.  Ham 
Strauss  v:  Railroad  Co. 
Striker  v.  Kelly 


Section 
294 
85 
175 
121 
162  a 
122 
130 
697,711 
480 


Cock 


466,  660 

5 

211 

221 

85 

412 

245 

166 

688 

557,  689 

254 

379,  380 

663,  655,  665 

615  a 

381,  894,  608 

185 

224 

106, 115 

70  a 

3166 

94  a,  132 

194  a 

373,  396 

658  a 

197 

291,  453 

714 

493 

501 

711 

381 

221,  229,  256 

206,  256 

717 

207 

225 

481,566,588 

696 

262 

734,  743 

112,  144,  414 

48 

91 

65 

248 

62 

499 

561,667 

85 


INDEX  TO   CASES   CITED. 


Ivii 


Strock  V.  Little 
Strong  V.  Hoyt 

V.  Mitchell 
V.  Smith 
V.  Wheeler 
Strong's  Ex'r  v.  Bass 
Strout  V.  Bradbury 
Struthers  v.  McDowell 
Stubbletield  v.  Hagerty 
Sturdevant  v.  Tuttle 
Sturges  V.  Kendall 
Sturtevant  v.  Robinson 
Summers  v.  Glancey 
Sumpter  v.  Wilson 
Supervisors  v.  Le  Clerc 
Suydam  v.  Huggeford 
Swagar  v.  Pierce 
Swain  v.  Mizner 
Swamscot   Machine    Co 

tridge 
Swan  V.  O'Fallon 
Swayze  v.  Doe 
Sweeny  v.  Allen 
Sweringen  v.  Eberius 


Swett  V.  Brown 

V.  Ordway 
Swezey  v.  Bartlett 
Swift  V.  Crocker 
Swisher  v.  Fitch 
Switzer  v.  Carson  409 

Symons  v.  Northern  112,  41-i 

Syracuse  City  Bank  v.  Coville  227 


Section 

10 

874 

595,  685 

247,  452 

278 

672,  683 

267,291,371 

90  c 

576 

10 

658  6 

597,  677 

123 

150 

85 

228,  262,  413 

10 

200 

V.    Par- 

665,  669, 685 

409 

443 

620,  624 

422 

251,  270,  453,  540 

595 

400 

280 

594 


Taber  i\  Nye 
Taffts  V.  Manlove 

Taintor  v.  Williams 
Talbot  v.  Harding 

V.  Pierce 
Talbott  V.  Tarlton 
Talcott  V.  Rozenberg 
Taliaferro  v.  Lane 
Tallman  v.  Bigelow 
Tamm  v.  Williams 
Tarns  V.  Bullitt 
Tapp  V.  Green 
Tapjian  v.  Evans 

V.  Harrison 
Tarbell  v.  Bradley 

V.  Dickinson 
Tate  V.  Morehead 
Taylor  v.  B.  &  U.  R, 
V.  Carryl 
V.  Cheever 
V.  Drane 


551 

221,  255  a,  256, 

263 

256,  290,  292  a 

231,  455 

421 

659,  660 

75 

81 

100 

473 

707 

650 

225 

221,  229 

10 

311 

451  a 

R.  Co.    469,  594 

223,  251 

35 

27  a 


Taylor  v.  Emery 
V.  Gardner 
V.  Gillian 
V.  Jones 
V.  Knowlton 
V.  Knox 
V.  Lynch 
V.  Mixter 
V.  Myers 
V.  Nichols 
V.  Phelps 
V.  Ricards 
V.  Royal  Saxon 
V.  Smith 
V.  Taylor 
Tazewell  v.  Barrett 
Temple  v.  Cochran 
V.  Hooker 
Templeman  v.  Fauntleroy 
Tennent  v.  Battey 
Terry  v.  Lindsay 
Tevis  V.  Hughes 
Thacher  v.  Bancroft 
Thatcher  v.  Golf 
V.  Miller 
V.  Powell 
Thayer  v.  Hunt 

V.  Hutchinson 
V.  Partridge 
V.  Pratt 
V.  Sherman 
V.  Southwick 
V.  Tyler 
V.  Willet 
Theirman  v.  Vahle 
Thomas  v.  Fuller 

V.  Goodwin 
V.  Hopper 
V.  Lusk 
V.  Price 
V.  Wooldridge 
Thompson,  Matter  of 
V.  Allen 


Section 
265 
686 
481,  509  a 
194,  199 
210  a 
63 
612 
236,  237,  239 
74 
381 
706 
131,  399 
223 
95,  112 
323 


V.  Allison 
V.  Brown 
V.  Carper 
V.  Chambers 
V.  Culver 
r..  Emmert 
V.  Fischesser 
V.  Lewis 
V.  Marsh 
V.  Rose 
V.  Shelby 
V.  Stevens 
V.  Stewart 
V.  Taylor 


665 

409 

289 

665 

225 

496 

147 

422 

136 

216,  217 

85,  87  b 

381,  385 

367 

682  c,  684  a 

620 

464,  515 

548,  667 

494,  697 

225 

96 

650 

523 

457,  684 

570 

655 

625 

41,  58,  65 

449,  453,  662, 

697,  711 

689  a 

251 

10 

108 

400 

5 

659 

570 

251,  267,  356 

245,  246 

579,  589 

245,  539 

490 

566 


iviu 


INDEX   TO   CASES   CITED. 


Section 

Thompson   v.  Tolmic 

87  fl 

I'.  Tows  on 

103 

V.  Wallace 

459,  663,  673 

Thorn  v.  Woodnilf 

452,  496 

Thornburjjh  v.  Hand 

185  a,  225 

Thorndike  v.  DeWolf 

552,  572,  618, 

620 

Thome  v.  Matthews 

674  a 

I'hornhill  (?.  Christmas 

251 

Thornton  c.  Winter 

207 

V.  Wood 

235 

Thrasher  v.  Buckingham                    620 

Tiiurber  v.  Blanck 

225 

Thurneyssen  v.  Vouthier                      62 

Thurston  v.  Huntington 

263,  265  a 

Tibbitts  V.  Townsend 

63  a 

Ticrnan  v.  Murrah 

222 

Tiffany  v.  Glover 

207 

V.  Lord 

115,  125,  185  c 

Tift  V.  Griffin 

85 

TiUinghast  v.  Johnson 

453,496 

Tilton  V.  Cofield 

282  a 

Timmons  v.  Garrison 

193 

V.  Johnson 

663 

Tindell  V.  Wail 

453 

Tingley  v.  Bateman 

474 

Tirrell  v.  Canada 

481 

Titcorab  v.  Seaver 

489 

Todd  V.  Shouse 

28 

Toland  v.  Sprague 

87 

Toledo  W.    &  W.   R. 

R.  Co.  V. 

MeNulty 

674  rt 

Toll  V.  Knight 

658  a 

Tomlinson  v.  Collins 

256,  269,  344, 

351,  356 

V.  Stiles 

204,  221 

V.  Warner 

732,  733 

Toulrain  v.  Lesesne 

208 

Towle  V.  Robinson 

381 

Towne  v.  Griffith 

487 

V.  Leaeh 

670 

Towns  V.  Pratt 

195 

Townsend  v.  Atwater 

549 

V.  Newell 

245 

Tracy  v.  Hornbuckle 

616  rt 

Train  v.  Wellington 

292  a,  358 

Trapnall  v.  McAfee 

176 

Travis  v.  Tartt 

452,  560 

Tread  way  v.  Ryan 

34 

Treadwell  v.  Brown 

457 

V.  Lawlor 

71  a 

Treat  v.  Barber 

199 

Trenton   Banking   Co. 

V.  Ilaver- 

stick 

37,  93 

Trew  V.  GaskiU 

106 

Tricbel  v.  Colburn 

512 

Trieber  v.  Blacher 

19G 

Tripp  V.  Brownell 

611 

Section 

Trombly  v.  Clark  620,  G22 

Trowbridge  v.  Means  022 

V.  Sickler  103 

V.  Weir  132 

Troxall  V.  Applegarth  517 

Troyer  c.  S(  hweiser  711 

Truitt  V.  Griflin  517 

Tnislow  V.  Putnam  245 

Tubb  V.  IMa<lding  713 

Tucker  v.  Adams  173 

V.  Atkinson  251,  508 

V.  Butts  515 

V.  Clisby  551 

V.  Frederick  410 

V.  INIarsteller  612 

V.  White  325 

Tudor  V.  Perkins  607 

Tufts  V.  Carradine  261 

V.  McClintock  196,  199 

Tukey  v.  Smith  209 

Tunnison  v.  P'ield  227 

Tunstall  V.  Means  622 

V.  Worthington  452 

Tupper  V.  Cassell  458,  662 

TurbiU's  Case  708,  722 

Turner  v.  Armstrong  545,  589 

V.  Austin  269 

V.  Collins  19 

V.  Fendall  244,  251,  505 

V.  McDaniel  95 

Twining  r.  Foot  381 

Twombly  v.  Hunnewell  308 

Tyler  v.  Ulmer  294,  302,  309 

V.  Winslow  663,  667 

Tyrell  v.  Rountree  221 

Tyson  v.  Hamer  116 

V.  Lansing  11,  149 


u. 

Uhrig  V.  Sinex 
Ullmeyer  v.  Ehrmann 
Union  Bank  v.  U.  S.  Bank 
Union  C.  M.  Co.  v.  Raht 
United  States  v.  Arredondo 
V.  Graff 
V.  Langton 


168 

635 

79 

36  rt,  113 

85 

451  a 

656,  658, 

659 

458 

458,  528 


V.  Robertson 
V.  Vaughan 
United  States  Bank  v.  Merchants' 

Bank  79 

United  States  Express  Co.  v.  Bed- 
bury  658  e 
United  States  Express  Co.  v.  Lucas  275 
Updegraff  v.  Spring                    665,  704 
Upham  V.  Dodge                     341  b,  422 


INDEX   TO   CASES   CITED. 


lix 


Section  | 

Section 

Upliani  V.  Naylor 
Urie  V.  Stevens 

668 

Wales  V.  Muscatine 

469,  516,  658  c 

245 

Walke  V.  Mc  Gehee 

641,  545 

Utley  V.  Smith 

297 

Walker  v.  Fitts 

248 

V.  Foxcroft 

267,  291,  371 

V.  Gibbs 

557 

V. 

V.  Roberts 
V.  Turner 

262,  273,  275 
85 

Vairin  v.  Edmonson 

444 

V.  Wallace 

662 

Van  Alstyne  v.  Erwine 

102 

V.  Woods 

185 

Van  Auiee  v.  Jackson 

481 

Wall  V.  Wall 

89  b 

Van  Arsdale  v.  Krum      143, 

146, 

262, 

Wallace  v.  Barker 

249 

273 

V.  Castle 

67 

Van  Buskirk  v.  Hartford  F.  I 

.Co. 

605, 

V.  Finberg 

178,  182 

608 

V.  Forrest 

221,  231,  263 

Vance  v.  McLaughlin 

247 

V.  McConne 

I      619,  700,  702 

Van  Etten  v.  Hurst 

185  a 

225 

V.  Patterson 

570 

Van  Kirk  v.  Wilds 

105 

107 

V.  W.  H.  C. 

Co.                  612 

Van  Loan  v.  Kline 

224 

229 

Walling  V.  Miller 

627 

Van  Loon  v.  Lyons              75 

,  115 

125 

Wallis  V.  Murphy 

108 

Van  Pelt  v.  Littler 

196 

V.  Wallace 

107,  136 

Van  Riswiek  v.  Lamon 

509  a 

Walser  v.  Thies 

730,  732  a,  745 

Van  Staphorst  v.  Pearce 

594 

,612 

Walters  v.  Washington  Ins.  Co.      607, 

Van  Wyck  v.  Bauer 

27 

608 

Varnell  v.  Speer 

470 

Ward  V.  Begg 

29 

Vason  V.  Clarke 

636 

V.  Hartford 

516 

Vattier  v.  Lytle 

89  a 

V.  Howard 

27,  262,  273,  275 

Vaughn  v.  Sturtevant 

422 

V.  Lamson 

484 

Veach  V.  Adams 

248 

V.  IMcKenzie 

5,  11,  224,  225 

Veiths  V.  Hagge 

173 

V.  Morrison 

608 

Victor  V.  Hartford  Ins.  Co. 

545 

V.  Whitney 

316 

Vienne  v.  McCarty 

401 

Ware  v.  Gowen 

552 

Vincent  v.  Watson 

594 

V.  Todd 

33  a,  107 

Vinson  v.  Huddleston 

224 

Warner,  Matter  of 

60,  400 

Vinton  V.  Bradfoi'd 

267 

.  356 

V.  Everett 

76,  222 

V.  Mead 

187  b 

V.  Perkins  562,  642,  644,  655, 

Vogle  V.  New  Granada  Canal  Co. 

79 

667 

Voorhees  v.  Bank  U.  S.  85, 

87  a, 

89  a 

V.  Webster 

448 

V.  Hoagland 

144 

,  405 

Warren  v.  Copelin 

719 

Vorse  V.  Phillips 

170  a 

,  176 

V.  Leland 

349,  367 

Vosburgh  v.  Welch 

99 

V.  Moore 

655 

Vreeland  v.  Brown 

425 

Warwick  v.  Chase 
Washburn  v.  N.  Y. 

10,  15 

&  V.  M.  Co.  460, 

692,  696 

w. 

Waterhouse  v.  Bird 

345,  353 

V.  Smith                          290 

Wadsworth  v.  Cheeny 

113 

Waterman  v.  Robinson                      367 

V.  Clark 

620 

V.  Treat 

345 

Waite  V.  Osborne 

496 

Waters  v.  Riley 

327  a 

Wakefield  v.  Fairman 

194  a 

Watkins  v.  Cason 

676 

V.  Martin 

627 

V.  Field 

463,  686 

Walbridge  v.  Smith 

373 

V.  Otis 

490 

V.  Spalding 

132 

V.  Pope 

694 

Walcot  V.  Pomeroy 

254 

Watson  V.  Bagaley 

610 

Walcott  V.  Hendrick 

55 

V.  Kennedy 

313 

V.  Keith 

199,  45;3 

V.  McAllister       112,  144,  414 

Walden  v.  Valiant 

589 

V.  Pierpont 

40 

Wahhnati  v.  Broder 

248 

V.  Todd 

251,  267,  356,  508 

Wales  V.  Clark 

183  a 

Watt  V.  Carnes 

36  a,  90,  91,  113 

Ix 


INDEX   TO   CASES   CITED. 


Waynant  v.  Dodson 
Weathers  v.  Mudd 
Weaver  v.  Davis 

V.  Piinear 
V.  Wood 
Webb  V.  Lea 

V.  MrCauley 
V.  Miller 
V.  Peale 
V.  Steele 
Weber  v.  Carter 

V.  Weitling 
Webster  v.  Adams 
V.  CofHn 
V.  Gage 
V.  Harper 
V.  Lowell 
V.  McDaniel 
V.  Randall 
Reid 


Sect  ii  III 

3;u 

233 

509  a 

17 

296  a 

696 

512 

674  f 

490 

379,  381 

658  6,  704 

65,  89  b 

672  a 

373,  374 

461 

275,  354,  382 

711 

624 

519 

5 


V.  Steele      457,  545,  647,  663 

Weed  V.  Dills  338,  342 

V.  Jewett  610,  612 

Wehle  V.  Butler  185  b,  185  c,  231 

Weil  V.  Lankins  225 

V.  Silverstone  199 

V.  Tyler  550 

Welch  V.  Gurley  451  a,  496 

V.  Jamison  222 

Weller  v.  Weller  689 

Wellover  v.  Soule  451  6,  561 

Wells  V.  Bannister  487 

V.  Brander  425 

V.  Greene  646 

V.  Mace  684 

V.  The  People  62 

V.  Stevens  89  b 

Welsh  V.  Joy  213 

Wendell  v.  Pierce  513 

Wentworth  v.  Leonard  373 

V.  \Veymouth  718 

V.  Whittemore      544,  551, 

552 

West  V.  IMeserve  295 

V.  Piatt         _  287,  674  a 

Westervelt  v.  Lewis  5 

V.  Pinkney  255  a 

Weston  V.  Dorr  353 

West  River  Bank  v.  Gorham  267 

Wetherell  v.  Hughes  374 

Wetherill  v.  Flanagan  583,  659 

Wetherwax  v.  Paine  94 

Wetmore  v.  DatHn  94,  132 

Wetter  u.  Rucker  711 

Weyman  v.  Murdock  81 

Wharton  v.  Conger  109,  208,  318,  416 

Wheat  V.  P.  C.  &  F.  D.  R.  R.         474 

Wheeler  u.  Aldrich  713 


Wheeler  v.  Bowen 
V.  Cobb 
V.  Degiian 
i\  Emerson 
V.  Farmer 
V.  INIoore 
V.  Nichols 
V.  Slavens 
V.  Smith 
V.  Townsend 
V.  Train 

Whidden  v.  Drake 

Whipple  V.  Cass 

V.  Robbins 
V.  Thayer 

Whitaker  v.  Sumner 

White  V.  Bird 
V.  Casey 
V.  Floyd 
V.  Hawkins 
V.  Heavner 


Section 

247,  501 

65 

46,  62,  404 

683,  687 

34,  98 

247 

222,  426 

122 

508 

87  a 

245 

616 

274 

619,  630 

605 

237 

641 

91,  697 

5 

340  6 

422 


V.  Jenkins    454  b,  463,  487,  541 

V.  Madison  291 

V.  Morton  248 

V.  Richardson  694 

V.  Stanley  94 

V.  White  454  b 

V.  Wilson  70,  407 

V.  Wyley  176,  738 

Whitehead  v.  Henderson  696,  697 

Whiting  V.  Budd  112,  144,  414 

V.  Earle  594 

Whitney  v.  Brunette  87,  113 

V.  Butterfield  187,  191  a 

V.  Dean  539 

V.  Farrar  35 

V.  Farwell  269,  351,  353,  356, 

359,  367,  379,  388,  395 

V.  Ladd  291,  371 

V.  Munroe  464,  570,  572 

Whitten  v.  Little  604 

Whittier  v.  Prescott  454  a 

V.  Smith     269,  291,  354,  356, 

367,  379,  382 

Whitwell  V.  Brigham  32,  35 

Wicks  V.  Branch  Bank      576,  579,  607 

Wigfall  V.  Byne  143 

Wiggin  V.  Day_  246 

V.  Lewis  59b 

Wight  V.  Warner  85,  87,  89  b 

Wicrwall  V.  U.  C.  &  M.  Co.  480,  658  c, 

706 
Wilbraham  v.  Snow  291 

Wilcox  V.  Mills  659,  660,  667 

Wdd  V.  Ferguson  516  a 

Wilder  v.  Bailey  506,  544 

v.  liolden  204 

V.  Weatherhead  463,  455,  674  a 


INDEX  TO   CASES   CITED. 


Ixi 


Section 

Wildes  V.  Nahant  Bank  481 

Wilds  V.  Blanchard  250 

Wiley  V.  Sledge  66 

V.  Traiwic-k  728,  732 

Wilhelmi  V.  Haffner  579 

Wilkie  V.  Hall  216 

Wilkinson  v.  Hall  630 

V.  Patterson  332 

Willard  V.  Butler  650 

V.  Rice  199 

V.  Sheafe  483,  551,  557 

V.  Sturtevant  489,  639 

Willet  V.  Equitable  Ins.  Co.     474,  478 

V.  Price  658  e 

Williams  v.  A.  &  K.  R.  Co.              667 

V.  Babbitt  204,  210  a 

V,  Barrow  139 

V.  Boardman  646 

V.  Brackett  219 

V.  Cheeseborough  206 

V.  Coleman  151 

V.  Gage  457,  545,  570 

V.  Housel  461,  659 

V.  Hunter  732,  736 

V.  Jones     509  a,  653,  653  a, 

659 

V.  Marston  651 

V.  Martin  106 

V.  Rlichenor  225 

V.  Oppelt  216 

V.  Powell  200 

V.  Reed  490 

V.  Stewart  437,  446  a 

V.  Whoples  245 

Williamson  v.  Beck  81 

V.  Berry  85 

V.  Bowie  221,  263 

V.  Gayle  681 

Willing  V.  Bleeker  222 

V.  Consequa  664,  665,  704 

Willis  V.  Crooker  282 

V.  Lyman  94 

Wills  V.  Noyes  732,  733 

Wilson  V.  Albright  481,  661,  583,  688, 

659 

V.  Arnold      88,  89  a,  106,  111 
V.  Bank  of  Louisiana         616  a 

V.  Britton  75 

V.  Carson  605,  611 

V.  Danforth  79,  418 

V.  Forsyth  221 

V.  Lane  199 

V.  Lewis  616 

V.  Murphy  706 

V.  Outlaw  167 

V.  Root  170,  176 

V.  Wilson  15 

V.  Wood  481 


Wiltse  V.  Stearns 
Wimer  v.  Pritchartt 
Winchell  r.  Allen 
Winchester  v.  Cox 
Windwart  v.  Allen 
Windgate  v.  Wheat 
Winsor  v.  Orcutt 
Winston  v.  Ewing 
Winter  v.  Drury 


Section 

69,  107 

620 

499 

170  a 

658  e 

193,  251 

159,  107, 176 

567 

611 


Winterfield  v.  M.  &  St.  P.  R.  R. 

Co.  480 

Winthrop  v.  Carleton  701 

Wise  V.  Hilton  706 

Witherspoon  v.  Barber  662 

Wolfr.  McGavock  65 

V.  Tappan  464 

Wolfe  V.  Dorr  253  a 

Wood  V.  Barker  157,  733,  738 

V.  Bodwell  600 

V.  Buxton  651 

V.  Denny  282 

V.  Lake  619 

V.  Partridge  651,  678,  667, 

^  718 

V.  Squires  133,  147 

V.  Wall  635,  636 

V.  Washburn  336 

V.  Weir  236,  727,  732 

V.  Wells  101,  102 

Woodbridge  v.  Morse  464,  506,  515 

V.  Winthrop  633,  697 

Woodbury  v.  Long  196,  246 

Woodfolk  V.  Whitworth  451  b,  697 

Woodhouse  v.  Com.  Ins.  Co.            660 

Woodley  v.  Shirley  11,  416 

Woodman  v.  Trafton  352 

Woodruff !;.  Bacon  665 

V.  French  455 

V.  Sanders  112 

Woodward  v.  Adams  327  b 

V.  Woodward  600 

Woodworth  v.  Lemmerman  256 

Woolfolk  V.  Cage  18 

V.  Ingram  331 

Wooster  ik  Page  480 

Work  V.  Titus  132 

Worthington  v.  Gary  95 

r.  Jones  636,  642 

Wray  v.  Gilmore  101 

Wright  V.  Bosworth  465 

V.  Foord  487,  659 

V.  Oakey  340  a 

V.  Ragland  111,  123 

V.  Rowland  227  a 

V.  Smith  133,  415 

V.  Sncdecor  36 

V.  Wi.ite  340  b 

Wrigley,  Matter  of  59,  60,  03 


Ixii 


INDEX   TO   CASES    CITED. 


Wrijil(>v  r.  Geyer 
Wyatt's  Ailiii'r  i\  Rambo 
AVybiaiits  v.  Rice 
Wyman  v.  Ilidiborn 

V.  Mitchell 

V.  Stewart 


Y. 

Yale  V.  Saunders 
Yarboroujih  v.  Thomps 
Yarbroutrli  v.  Hudson 
Yates  V.  Bond 
Yelverton  i\  Burton 
Yerb}'  v.  Lackland 
Yocum  V.  Barnes 
V.  White 
Yongue  v.  Linton 


Section 

Section 

550 

Young 

V.  Broadbcnt 

282 

094,  711 

V.  Cooper 

36  a 

588 

V.  Grcgorie 

732 

559 

V.  Grey 

140,  144,  414 

85 

V.  Nelson 

54  a 

658  a 

V.  Pickens 

341  c 

V.  Ross 

475 

V.  AValker      271 

292  a,  292  b, 

358,  359 

V.  Young 

251,  499,  625 

194  a 

Yourt 

V.  Hopkins 

222 

9,589,717 

743 

89  a 

z. 

244  a,  261 

696 

Zeiorenhagen  v.  Doe 

221,  224,447 

328,  336 

Zerega 

V.  Benoist 

95 

711 

Zinn  V 

Dzialynskl 

95 

535 

Zurcher  v.  Magee 

506,  658  a 

THE    LAW    OF    SUITS    BY    ATTACHMENT. 


THE 


LAAV  OF  SUITS  BY  ATTACHMENT. 


CHAPTER   I. 

ORIGIN,    NATURE,     AND     OBJECTS     OF     THE     RE:MEDY     BY 
ATTACHMENT. 

§  1.  THE'prelirainary  attachment  of  a  debtor's  propert}^,  for  the 
eventual  satisfaction  of  the  demand  of  a  creditor,  is  unquestion- 
ably a  proceeding  of  great  antiquity.  Whether  the  statement  of 
Mr.  Locke,  in  his  Treatise  on  the  Law  of  Foreign  Attachment  in 
the  Lord  Mayor's  Court  of  London,  ascribing  its  origin  to  the  Ro- 
man law,  be  capable  of  exact  verification,  need  not  now  detain  us.^ 
It  is  sufficient  for  the  present  purpose,  that,  so  far  as  its  use  in  the 
United  States  is  concerned,  we  have  no  difficulty  in  finding  its 
origin  in  the  custom  of  Foreign  Attachment  of  London,  which  is 
agreed  by  all  authorities  to  have  a  very  ancient  existence.  This, 
with  other  customs  of  that  city,  has,  from  time  to  time,  been  con- 
firmed by  Royal  Charters  and  Acts  of  Parliament,  and  is  declared 
"  never  to  become  obsolete  by  non-user  or  abuser."  It  is  a  singu- 
lar incident  of  those  customs,  that  "  they  may  be  and  are  certified 
and  are  recorded  bj^  word  of  mouth  ;  and  it  is  directed  that  the 
mayor  and  aldermen  of  the  city,  and  their  successors,  do  declare 
by  the  Recorder  whether  the  things  under  dispute  be  a  custom  or 
not,  before  any  of  the  King's  justices,  without  inquest  by  jury, 
even  thougli  the  citizens  themselves  be  parties  to  the  matter  at 

1  The  following  passage  in  Adam's  (si  fraiidationis  causa  latitaret,  Cic.  Qnint. 
Roman  Antiquities,  by  Wilson,  p.  194,  is  19),  lie  was  summoned  (evocalatur)  tliree 
probably  that  to  which  Mr.  Locke  refers,  times,  with  an  interval  of  ten  days  be- 
as  sustaining  his  position:  "It  was  un-  tween  each  summons,  by  the  voice  of  a 
lawful  to  f(n-ce  any  person  to  court  from  herald,  or  by  letters,  or  by  the  edict  of 
his  own  house,  because  a  man's  house  thepra;tor;  and  if  he  still  did  not  appear 
was  esteemed  his  sanctuary  {tntissimum  [xe  non  sisteret),  the  prosecutor  was  put 
refiiijium  et  receiiUicuhuii).  But  if  any  iu  possession  of  his  efl'ects." 
lurked  at  home  to  elude  a  prosecution 

1  [1] 


§  3  ORIGIN,    NATURE,   ETC.    OF   ATTACHMENT.       [CHAP.  I. 

issue ;  and  being  once  recorded,  they  are  afterwards  judicially 
noticed."  ^  We  accordingly  find  the  custom  of  Foreign  Attach- 
ment certified  by  Starke}',  Recorder  of  London,  as  early  as  22 
Edward  IV.  to  be  :  "  That  if  a  plaint  be  affiimed  in  London,  be- 
fore, &c.,  against  any  person,  and  it  be  returned  niJiil,  if  the  plaintiff 
will  surmise  that  another  person  within  the  city  is  a  debtor  to  the 
defendant  in  any  sum,  he  shall  have  garnishment  against  him,  to 
warn  him  to  come  in  and  answer  whether  he  be  indebted  in  the 
manner  alleged  by  the  other;  and  if  he  comes  and  does  not  deny 
the  debt,  it  shall  be  attached  in  his  hands,  and  after  four  defaults 
recorded  on  the  part  of  the  defendant,  such  person  shall  find  new 
surety  to  the  plaintiff  for  the  said  debt;  and  judgment  shall  be 
that  the  plaintiff  shall  have  judgment  against  him,  and  that  he 
shall  be  quit  against  the  other,  after  execution  sued  out  by  the 
plaintiff." 

§  2.  The  custom  thus  set  forth  Avas,  it  is  believed,  first  treated 
of  in  an  orderly  manner  by  Mr.  Bohun,  in  a  Avork  entitled  "  Privi- 
legia  Londini :  or  the  Rights,  Liberties,  Privileges,  LaAvs,  and 
Customs  of  the  City  of  London  ;  "  of  the  third  edition  of  which  a 
copy,  printed  in  1723,  is  before  me ;  in  Avhich  the  author  remarks  : 
"  It  may  be  here  observed,  that  altho'  the  Charters  of  the  City  of 
London  (as  they  are  here  recited  by  15  Car.  II.)  do  begin  Avith 
those  of  William  I.,  yet  it  must  not  be  understood  as  if  any  of  the 
city  rights,  liberties,  or  privileges  Avere  originally  owing  to  the 
grants  of  that  jirince.  For  'tis  evident,  the  said  Cit}'  and  Citizens 
had  and  enjoyed  most  of  the  liberties  and  privileges  mentioned  in 
the  following  charters  (besides  divers  others  not  therein  enumer- 
ated) by  immemorial  usage  and  custom  long  before  the  arrival  of 
William  I." 

§  3.  This  custom,  notwithstanding  its  local  and  limited  charac- 
ter, Avas  doubtless  knoAvn  to  our  ancestors,  Avhen  they  sought  a 
new  home  on  the  Western  continent,  and  its  essential  principle, 
brought  hither  by  them,  has,  in  varied  forms,  become  incorporated 
into  the  legal  systems  of  all  our  States ;  giving  rise  to  a  large 
body  of  written  and  uuAvritten  law,  and  presenting  a  subject  of 
much  interest  to  legislatures  and  their  constituents,  as  Avell  as  to 
the  legal  profession  and  their  clients.  .   Our  circumstances  as  a 

1  Locke  on  Foreign  Attachment,  XVI. 
[2] 


CHAP.  I.]       ORIGIN,   NATURE,   ETC.    OF    ATTACHMENT.  §  4 

nation  have  tended  peculiarly  to  give  importance  to  a  remedy  of 
this  character.  The  division  of  our  extended  domain  into  many 
different  States,  each  limitedly  sovereign  within  its  territory,  in- 
habited by  a  people  enjoying  unrestrained  privilege  of  transit  from 
place  to  place  in  each  State,  and  from  State  to  State  ;  taken  in 
connection  with  the  universal  and  unexampled  expansion  of  credit, 
and  the  prevalent  abolishment  of  imprisonment  for  debt ;  would 
naturally,  and  of  necessity,  lead  to  the  establishment,  and,  as 
experience  has  demonstrated,  the  enhirgement  and  extension,  of 
remedies  acting  upon  the  property  of  debtors.  The  results  of  this 
tendency,  in  the  statute  law  of  the  several  States,  may  be  dis- 
covered by  reference  to  their  leading  statutory  provisions,  as 
found  in  the  Appendix;  while  those  connected  with  the  judicial 
administration  of  the  law  appear  in  the  succeeding  chapters  of 
this  work. 

§  4.  In  its  nature  this  remedy  is  certainly  anomalous.  As  it 
exists  under  the  custom  of  London,  it  has  hardly  any  feature  of 
a  common-law  proceeding.  At  common  law  the  first  step  in  an 
action,  without  which  no  other  can  be  taken,  is  to  obtain  service 
of  process  on  the  defendant ;  under  the  custom,  this  is  not  only 
not  done,  but  it  was  declared  by  Lord  Mansfield,  that  the  very 
essence  of  the  custom  is  that  the  defendant  shall  not  have  notice. 
At  common  law  a  debtor's  property  can  be  reached  for  the  pay- 
ment of  his  debt,  only  under  ?i  fieri  facias  ;  under  the  custom,  it 
is  subjected  to  a  preliminary  attachment,  under  which  it  is  so  held 
as  to  deprive  the  owner  of  control  over  it,  until  the  plaintiff's  claim 
be  secured  or  satisfied.  At  common  law  only  tangible  property 
can  be  subjected  to  execution  ;  under  the  custom,  a  debt  due  to 
the  defendant  is  attached,  and  appropriated  to  the  payment  of  his 
debt.  At  common  law,  after  obtaining  judgment,  the  plaintiff  is 
entitled  to  execution  without  any  farther  act  on  his  part ;  under- 
the  custom,  he  cannot  have  execution  of  the  property  or  debt  in 
the  garnishee's  hands,  without  giving  pledges  to  refund  to  the  de- 
fendant the  amount  paid  by  the  garnishee,  if  the  defendant,  within 
a  year  and  a  day,  appear  and  disprove  the  debt  for  which  the  at- 
tachment is  obtained. 

Li  these  and  other  respects  the  proceeding  under  the  custom 
has  an  individuality  entirely  foreign  to  the  common  law.  Its  pe- 
culiar features  have  in  the  main  been  preserved  in  its  more  en- 

[3] 


§  5  ORIGIN,    NATUKE,    ETC.    OF   ATTACHMENT.       [CHAP.  I. 

larged  and  diversified  development  in  this  country.  The  most 
material  differences  as  it  exists  among  us,  are,  the  necessity  of 
notice  to  the  defendant,  either  actual  or  constructive  ;  the  direct 
action  of  the  attachment  on  tangible  property,  as  well  as  its  in- 
direct effect  upon  debts,  and  upon  i)roperty  in  the  garnishee's 
hands  ;  the  necessity  for  the  presentation  of  special  grounds  for 
resort  to  it;  and  the  requirement  of  a  cautionary  bond,  to  be 
executed  by  the  j^laintiff  and  sureties,  to  indemnify  the  defendant 
against  damage  resulting  from  the  attachment.  Still  the  remedy 
is,  with  us,  regarded  and  treated  as  sui  fjeneris,  and  is  practically 
much  favored  in  legislation,  though  frequently  spoken  of  by  courts 
as  not  entitled  to  peculiar  favor  at  their  hands. 

§  4  a.  Nothing  more  distinctly  characterizes  the  whole  system 
of  remedy  b}'  attachment,  than  that  it  is  —  except  in  some  States 
where  it  is  authorized  in  chancery  —  a  special  remedy  at  laiv, 
belonging  exclusively  to  a  court  of  law,  and  to  be  resorted  to 
and  pursued  in  conformity  with  the  terms  of  the  law  conferring 
it;  and  that  where,  from  a  conflict  of  jurisdiction,  or  from  other 
cause,  the  remed}^  by  attachment  is  not  full  and  complete,  a  court 
of  equity  has  no  power  to  pass  an}^  order  to  aid  or  perfect  it.^ 

§  5.  Under  the  custom,  and  likewise  in  this  country,  attach- 
ment is  in  the  nature  of,  but  not  strictly,  a  proceeding  in  rem  ; 
since  that  only  is  a  proceeding  in  rem^  in  which  the  process  is  to 
be  served  on  the  thing  itself,  and  the  mere  possession  of  the 
thing  itself,  by  the  service  of  the  process  and  making  proclama- 
tion, authorizes  the  court  to  decide  upon  it  without  notice  to  any 
individual  Avhatever.^  The  original  object  of  the  London  pro- 
ceeding was,  by  attachment  of  the  defendant's  property  instead 
'of  his  body,  to  compel  his  appearance  by  sufficient  sureties  to  an- 
swer the  plaintiff's  demand.^  The  practice  of  summoning  him 
.at  the  commencement  of  the  proceeding,  if  it  ever  prevailed,  was, 
in  all  probability,  found  to  interfere  with  the  advantage  intended 
to  be  given  by  the  attachment,  and  was,  therefore,  discontinued ; 
but  though  the  defendant  is  in  fact  never  summoned,  still  the 
record  of  the  proceedings  in  the  Mayor's  court  must  contain  the 

1  McPlierson  v.  Snowden,  19  Mary-  brough,  125 ;  Megee  v.  Beirne,  89  Penn. 
land,  197  ;  Lackland  v.  Garesche,  66  Mis-  State,  50 ;  lirav  v.  MuClury,  55  Missouri, 
•souri,  267.  128. 

2  Mankin    i'.    Chandler,    2    Brocken-  ^  Ashley  on  Attacliment,  11. 

•  [4] 


CHAP.  I.]      ORIGIN,   NATURE,    ETC.    OF   ATTACHMENT.  §  5 

return  of  nihil,  or  it  will  be  erroneous  and  void.i  ^\\  i\^q  notice, 
therefore,  which  the  defendant  there  has  of  the  proceeding,  is 
derived  through  the  attachment  of  his  propert}' ;  and  herein  is 
the  leading  difference  between  the  London  proceeding  and  ours. 
With  us,  the  writ  of  attachment  is  always  accompanied  or  pre- 
ceded by  a  summons,  which,  if  practicable,  is  served  on  the 
defendant;  if  not,  he  is  notified  by  publication  of  the  attachment 
of  his  property.  If  the  summons  be  served  and  property  be 
attached,  the  latter,  unless  special  bail  be  given,  is  held  for  the 
payment  of  such  judgment  as  the  plaintiff  may  recover,  and  that 
judgment  is  in  perso7iam,  authorizing  execution  against  any 
property  of  the  defendant,  whether  attached  or  not.  If  the 
summons  be  served,  but  no  property  attached,  the  suit  proceeds 
as  any  other  in  which  the  defendant  has  been  summoned,  un- 
affected by  its  connection  with  a  fruitless  attachment.  If  prop- 
erty is  attached,  but  there  be  no  service  on  the  defendant,  and 
he  do  not  appear,  publication  is  made,  which  brings  the  defendant 
before  the  court  for  all  purposes,  except  the  rendition  of  a  personal 
judgment  against  him  ;  ^  and  the  cause  proceeds  to  final  judgment, 
but  affects  only  what  is  attached  ;3  and  the  judgment  will  not 
authorize  an  execution  against  any  other  property,  nor  can  it  be 
the  foundation  of  an  action  against  the  defendant;'*  nor  can  the 

1  Locke  on  Foreign  Attachment,  12.  of    tlie    defendant,    and    no    service    of 

2  King  V.  Vance,  46  Indiana,  246.  process  on  him,  the  case  becomes,  in  its 

3  Kilburn  v.  Woodwortli,  5  Jolmson,  essential  nature,  a  proceeding  in  rnn,  the 
37;  Lincoln  v.  Tower,  2  McLean,  473;  only  effect  of  which  is  to  subject  the 
"Westervelt  v.  Lewis,  Ibid,  oil;  Phelps  property  attaclied  to  the  payment  of 
V.  Holker,  1  Dallas,  261  ;  Chamberlain  v.  the  demand  which  the  court  may  find  to 
Faris,  1  Missouri,  517;  Massey  r.  Scott,  be  due  to  the  plaintiff. 

49  Ibid.  278  ;  Downer  v.  Siiaw,  2  Foster,  "  That  such  is  the  nature  of  this  pro- 

277  ;   Ma.xwell  v.    Stewart,   22    Wallace,  ceeding  in   this  latter  class  of  cases,  is 

77 ;    Miller  v.    Dungan,    36   New  Jersey  clearly  evinced  by  two   well  established 

Law,   21 ;  Coleman's    Appeal,    75   Penn.  propositions  :  first,  the  judgment  of  the 

State,   441  ;    Fitzsimmons   v.   Marks,   66  court,  though  in  form  a  personal  ju<lg- 

Barbour,  333 ;  Force  v.  Gower,  23  How-  ment  against  flie  defendant,  has  no  effect 

ard  Pract.  294;  Clymore  r.  Williams,  77  beyond   the   property   attached    in    that 

Illinois,  618.  suit.    No  general  execution  can  be  issued 

*  In  Cooper  v.  Reynolds,  10  Wallace,  for  any  balance  unpaid  after  the  projierty 

308,  tiie   Supreme   Court  of   the  United  is  exhausted.     No  suit  can  be  maintained 

States  said  :  "  If  the  defendant  appears,  on  such  a  judgment  in  the  same  court  or 

the  cause  becomes  mainly  a  suit  in  jier-  any  other,  nor  can  it  be  used  in  evidence 

sonam,  with  the  added  incident,  that  the  in  any  other  proceeding  not  affecting  the 

property  attached  remains  liable,  under  attached  property,  nor  couhl  the  costs  in 

the  control  of  the  court,  to  answer  any  that  proceeding  be  collected  of  defendant 

demand  which  may  be  established  against  out  of  any  other  property  than  that  at- 

the  defendant  by  the  final  judgment  of  tached  in  the  suit.     Second,  the  court,  in 

the  court.     But  if  there  is  no  ai)pearance  such   a   suit,  cannot   proceed  unless  tlie 

[5] 


§  6  ORIGIN,   NATURE,    ETC.    OF   ATTACHMENT.       [CHAP.  I. 

plaintiff  take  judgment  for  a  greater  amount  than  that  for  which 
the  attachment  issued,^  nor  for  any  other  cause  of  action  than 
that  stated  in  the  publication.^  If  there  be  neither  service  upon 
the  defendant  nor  attachment  of  his  property,  there  is  nothing 
for  the  jurisdiction  to  rest  upon,  and  any  proceedings  taken  in 
the  cause  are  coram  nonjudice  and  void  ;  ^  even  though  the  statute 
law  of  the  State  expressly  authorize  a  judgment  to  be  rendered 
against  a  defendant  mider  such  circumstances.^  Another  essen- 
tial difference  between  the  two  proceedings  is,  that  while  under 
the  custom  the  defendant  cannot  appear  and  defend  the  action 
without  entering  special  bail,  such  is  not  the  case  with  ns.  Here, 
it  is  optional  with  him  to  give  security  for  the  pajmient  of  the 
debt  or  not ;  but  in  either  event  he  is  generally  allowed  to  ap- 
pear and  defend.  If  he  give  the  security,  the  same  result  follows 
as  under  the  custom,  —  the  dissolution  of  the  attachment,  the  re- 
lease of  the  attached  property,  and  the  discharge  of  the  gar- 
nishee;^ if  not,  the  property  is  the  security,  and  remains  in 
custody. 

§  6.  Under  the  custom,  the  only  preliminary  affidavit  to  be 
made  by  the  plaintiff,  in  order  to  his  obtaining  the  attachment, 
is,  that  the  defendant  is  indebted  to  him  in  a  specific  sum.  In 
this  country,  he  is  generally  required  to  swear,  as  well  to  the  de- 
officer  fimls  some  property  of  defendant  49  Mississippi,  795 ;  Bliss  v.  Heasty,  61 
on  wliich  to  levy  tlie  writ  of  attaoliment.  Illinois,  338;  Eartliman  v.  Jones,  2 
A  return  that  none  can  be  found,  is  tlie  Yerger,  484;  Moore  v.  Gennett,  2  Ten- 
end  of  tlie  case,  and  deprives  tlie  court  nessee  Ch'y,  375. 
of  further  jurisdiction,  though  the  publica-  ^  Post,  §419  a. 

tion  may  have  been  duly  made  and  proven  ^  Janney  v.  Spedden,  38  Missouri,  395. 

in    court."     See  Westervelt   v.  Lewis,  2  '■^  Post,   §   449;   Eaton   v.    Badger,  33 

McLean,  511;    Thompson  v.  Emmert,  4  New  Hamp.  228;  Carleton  v.  Washing- 

Ibid.   ije;  Chamberlain  v.  Fans,  1    Mis-  ton   Ins.  Co.,  35   Ibid.  162;  Hopkirk   v. 

souri,    517  ;    Clark   v.    Holliday,   9   Ibid.  Bridges,  4  Hening  &  Munford,  413 ;  Mil- 

711 ;  Steel  v.  Smith,  7  Watts  &  Sergeant,  ler  v.  Sharp,  3  Randolph,  41 ;  Austin  v. 

447;  Kilburn  v.  Woodworth,  5  Johnson,  Bodley,  4  Monroe,  434  ;  Maude  v.  Rodes, 

37;  Robinson  v.  Ward,  8  Ibid.  86;  Pawl-  4  Dana,  144;  Hunt  v.  Johnson,  Freeman, 

ing    V.    Bird,    13    Ibid.    192;    Phelps    v.  282;    Johnson   v.   Johnson,  26    Indiana, 

Baker,  60  Barbour,  107  ;  White  v.  Floyd,  441 ;  Ward  v.  McKenzie,  33  Texas,  297  ; 

Speers    Eq.  351  ;  Manchester  v.  McKee,  Judah    v.    Stephenson,    10    Iowa,    493 ; 

9    Illinois    (4    Gilman),   511;    Miller    v.  Phelps     v.    Baker,     60     Barbour,     107; 

Dungan,  36  New  Jersey  Law,  21 ;  Fitz-  Cochran    v.    Fitch,    1     Sandford     Ch'y, 

Simmons    v.    Marks,   66    Barbour,    333;  142;    Clymore  v.    Williams,    77    Illinois, 

Oakley    v.  Asi)invvall,  4  Comstock,  514;  618;  Borders  v.  Murphy,  78  Ibid.  81. 

Bosweil  V  Otis,  9  Howard  Sup.  Ct.  3:36 ;  *  Pennoyer  v.  Neff,  95  United  States, 

D'Arcy  r.  Ketchum,  11  Ibid.  165;  Web-  714. 

ster  V.  Reid,  Ibid.  437  ;  Erwin  v.  Heath,  ^  See  Chap.  XIII. 

[6] 


CHAP.  I.]       ORIGIN,   NATURE,    ETC.    OF   ATTACHMENT.  §  7 

fendaiit's  indebtedness  or  liability  as  to  some  certain  fact,  desig- 
nated by  statute  as  a  ground  for  obtaining  the  writ.  Wherever 
this  is  requisite,  it  is  the  foundation  of  the  exercise  of  jurisdic- 
tion through  this  process,  and  without  it  no  legal  step  can  be 
taken.  The  facts  necessary  to  be  sworn  to  are  of  great  variety, 
and  embrace  many  different  phases  of  the  same  general  allega- 
tions ;  having  relation  mainly  to  the  residence  of  the  defendant, 
and  to  proceedings  on  his  part  to  avoid  the  service  of  process,  or 
to  dispose  of  his  property  adversely  to  his  obligations  to  his 
creditors,  and  giving  rise  to  a  great  variety  of  questions  of  gen- 
eral law  and  legal  practice.  It  would  be  interesting  to  group 
together  the  various  grounds  of  attachment  established  Ijy  the 
different  States.  Such  a  resume  would  exhibit  strikingly  the 
degree  to  which  the  necessities  of  the  country  have  led  to  the  en- 
largement of  the  sphere  of  this  remedy.  Such,  indeed,  has  been 
the  almost  uniform  tendency  of  all  legislation  on  this  subject; 
and  it  is  a  noticeable  fiict,  that  it  has  exhibited  itself  in  a  more 
marked  degree  in  the  new  States  than  in  some  of  the  old.  Un- 
trammelled by  ancient  forms,  precedents,  and  traditions,  their 
legislation  has  exhibited  in  this  regard,  as  in  others,  the  facility 
of  adaptation  to  existing  exigencies  and  circumstances,  which 
characterizes  a  new  people,  when  free  to  form,  and  engaged  in  the 
work  of  forming,  their  own  institutions.  Hence,  as  experience  has 
prompted,  the  grounds  of  attachment  have  been  multiplied,  until, 
in  some  States,  there  would  hardly  seem  to  be  much  more  needed 
in  this  respect,  unless,  as  in  those  of  New  England,  preliminary 
attachment  should  be  matter  of  right  in  every  action  ex  contractu. 
At  the  same  time  the  scope  of  the  remedy,  as  to  the  causes  of 
action  for  which  it  will  lie,  has  been  extended,  and  liberal  provi- 
sion has  been  made  in  a  number  of  the  States,  for  proceeding 
upon  demands  not  due,  in  cases  where  a  postponement  of  remedy 
until  their  maturity  would  endanger  their  collection; — a  valu- 
able measure,  destined,  probably,  at  no  distant  day,  to  become  a 
part  of  the  attachment  laws  of  all  our  States. 

§  7.  The  tendency  is  not  only  to  widen  the  sphere,  but  to  en- 
large the  operation  of  the  remedy,  by  subjecting  to  attachment 
interests  in,  and  descriptions  of,  property  not  heretofore  subject 
to  execution  at  common  law.  Under  the  custom,  as  before 
remarked,  the  attachment  reaches  only  effects  or  credits  in  the 

m 


§  8  ORIGIN,    NATURE,    ETC.    OF   ATTACHMENT.       [CHAP.  I. 

garnishee's  liands  ;  wliile  universally,  with  us,  it  acts  also,  by 
direct  levy,  ou  the  defendant's  tangible  property,  real  and  per- 
sonal. With  us,  too,  generally,  equitable  interests  in  real  estate 
inay  be  attached  ;  and  recent  legislation  in  several  States  author- 
izes the  attachment,  both  directly  and  b}^  garnishment,  of  choses 
in  action,  and  the  seizure  of  books  of  accounts,  and  the  subjection 
of  accounts  and  evidences  of  debt,  by  collection  through  a  re- 
ceiver, or  other  agent  of  the  court,  to  the  payment  of  the  de- 
fendant's debt.  At  the  same  time  there  is  a  more  extended 
disposition  manifested  to  give  to  garnishment  —  what  it  has 
under  the  custom  —  a  prospective  operation  upon  effects  coming 
into  the  garnishee's  hands  between  the  time  of  service  on  him 
and  the  time  of  filing  his  answer. 

§  8.  The  natural  result  of  the  matters  thus  briefly  noticed  is, 
to  give  this  remedy  a  high  practical  importance,  and  to  lead  to  a 
voluminous  mass  of  judicial  decisions,  extending  over  a  wider 
surface,  and  bringing  into  view  a  greater  variety  of  legal  doc- 
trines, than  would  be  conjectured  by  those  who  have  not  exam- 
ined the  subject.  In  relation  to  it  there  can,  in  the  nature  of 
our  institutions,  be  no. uniform  system  of  statute  law;  but  not- 
withstanding the  inevitable  diversity  in  this  particular,  there  is  a 
general  unity  of  aim  and  result ;  so  that  principles  and  rules  of 
identical  import  may  be  —  and  in  numberless  instances  are  — 
judicially  established,  under  statutes  widely  differing  in  details. 
Indeed,  it  may  be  questioned  whether  there  is  any  other  subject 
of  equal  extent,  in  the  administration  of  the  law,  defending  so 
entirely  upon,  and  so  exclusively  regulated  by,  statutory  pro- 
visions, that  would  exhibit  less  diversity  of  judicial  decision  than 
is  connected  with  this.  It  is,  therefore,  a  work  of  interest,  to 
present  in  a  connected  form  the  emanations  of  the  judicial  mind 
in  all  parts  of  our  country,  in  relation  to  a  proceeding  which  be- 
longs to  every  system  of  State  laws,  and  is  everywhere  resorted 
to  in  aid  of  creditors  who,  witliout  it,  Avould  often  have  no 
adequate  means  of   enforcing  their  claims. 

With  these  general  remarks  we  proceed  to  the  practical  con- 
sideration of  the  subject. 
[8] 


CHAP.  II.]  CAUSE   OF  ACTION.  §  10 


CHAPTER     II. 

FOR   WHAT    CAUSE   OF   ACTION   AN    ATTACHMENT   MAY   ISSUE. 

§  9.  By  the  custom  of  London  all  attachments  are  grounded 
upon  actions  of  debt.i  And  the  debt  must  be  of  such  a  nature 
as  will  sustain  an  action  at  law.  Equitable  debts,  therefore,  are 
not  sufficient  to  ground  an  attachment  upon;  such,  for  instance, 
is  a  legac3%  which  is  recoverable  only  in  the  spiritual  court  or  in 
a  court  of  equity.  Dividends  due  to  a  creditor  from  the  assignees 
under  a  commission  of  bankruptcy,  are  also  in  the  same  predica- 
ment, as  is  all  trust  property,  for  the  creditor  cannot  sue  for  these 
at  law,  but  must  either  petition  the  chancellor,  or  file  a  bill  in 
equity  to  recover  them.  The  debt  also  must  be  due,  or  it  cannot 
sustain  an  attachment.  Thus  no  attachment  can  be  made  upon 
a  bond,  bill,  or  note,  the  day  of  payment  whereof  is  not  yet  come, 
nor  for  a  book  debt  for  payment  of  which  time  has  been  given, 
until  such  time  be  elapsed.^ 

§  10.  In  this  country,  except  in  New  England,  resort  to  this 
process  was  formerly  almost  exclusively  restricted  to  creditors; 
but  now,  as  an  examination  of  the  Appendix  will  show,  the  range 
of  cases  in  which  it  may  be  used  is  greatly  enlarged  over  almost 
the  entire  country.  Nevertheless,  in  the  absence  of  statutory 
provision  allowing  attachments  to  issue  in  actions  founded  on 
tort,  it  has  been  uniformly  held,  that  in  such  actions  it  will  not 
lie.  Thus,  it  cannot  issue  in  an  action  of  trover,^  or  trespass;^ 
nor  for  a  malicious  prosecution  ;5  nor  for  assault  and  battery  ;6 

1  Privilegia  Londini,  254.  *  Ferris  v.  Ferris,  25  Vermont,  100. 

2  Asliley  on  Attacli'ment,  21,  22.  In  ^  Stanly  v.  Ogden,  2  Root,  259;  Ilyn- 
New  York  it  was  held,  that  the  remedy  son  v.  Tayhir,  3  Arkansas,  552 ;  Tarbell 
by  attachment  could  not  be  resorted  to  v.  Bradley,  27  Vermont,  535. 

in  equitable  actions.     Ebner  v.  Bradford,  «  Minga  v.  Zollicoffer,  1  Iredell  (Law), 

3  Abbott  I'ract.  x.  s.  248.  278 ;  Thompson  v.  Carper,  11  Humphreys, 

3  Marshall   v.   White,  8   Porter,   551  ;     542. 
Ilynson    v.    Taylor,    3    Arkansas,   552; 
Hutchinson  v.  Lamb,  Brayton,  2:34. 

[9] 


§  10  CAUSE   OF   ACTION.  [CHAP.  II. 

nor  to  recover  the  amount  of  expenses  incurred  for  medical  and 
surgical  services,  and  loss  of  time  dining  confinement,  resulting 
from  a  wound  inflicted  by  the  defendant;^  nor  for  damages  al- 
leged to  have  been  sustained  b}^  the  plaintiff,  in  consequence  of 
a  wrongful  sale  of  his  property  under  execution  ;^  nor  for  dam- 
ages caused  by  a  collision  between  two  steamboats  ;  ^  nor  for 
damages  sustained  by  a  steamboat  running  into  and  destroying  a 
house;*  nor  to  recover  from  common  carriers  damages  for  the 
loss  of  a  trunk,  where  the  declaration  is  in  tort  and  not  in  con- 
tract;^ nor  for  money  stolen  by  the  defendant;^  nor  for  breach 
of  marriage  promise  ;  "*  nor  for  damages  for  the  alleged  wrongful 
and  fraudulent  act  of  the  defendant,  in  breaking  open  a  letter 
intrusted  to  his  care ;  ^  nor  for  alleged  fraud  committed  by  the 
defendant  in  the  sale  of  personal  property  ;  ^  nor  to  recover  a  loss 
of  profits  resulting  from  the  defendant's  not  selling  and  investing 
in  a  return  cargo,  a  quantity  of  flour  shipped  to  him ;  ^^  nor  for 
the  recovery  of  specific  property ;  ^'  nor  for  the  destruction  by 
fire  of  plaintiff's  property,  caused  by  the  defendant's  carelessly 
and  negligently  setting  fire  to  neighboring  prairie  grass ;  ^^  nor 
for  the  recovery  of  the  statutory  forfeiture  for  taking  usurious 
interest  ;^^  nor  for  slander,  under  a  statute  authorizing  an  attach- 
ment for  torts,  trespasses,  or  injuries  actually  done  to  property, 
real  or  personal.^*  In  all  such  cases,  the  rule  laid  down  b}'-  the 
Supreme  Court  of  Wisconsin  is  undoubtedly  correct,  that  though 
the  plaintiff  should,  in  his  affidavit  for  obtaining  the  attachment, 
allege  a  cause  of  action  founded  on  contract,  yet  whenever  it  ap- 
pears, either  from  the  declaration  or  the  evidence,  that  the  true 
cause  of  action  is  not  of  that  character,  it  is  the  duty  of  the  court 
to  dismiss  the  suit.^^ 

'  Prewitt  V.  Carmichael,  2  Louisiana  ^  Piseataqua     Bank     v.     Turnley,    1 

Annual,  943.  Miles,  312. 

2  Greiner  v.  Prendergast,  3  Louisiana  ^  Maxwell  v.  McBrayer,  Phillips,  527. 

Annual,  376.  ^  Raver  v.  Webster,  3  Iowa,  602. 

^  Svvagar  v.  Pierce,  3  Louisiana  An-  ^  Fellows  v.   Brown,    38    Mississippi, 

nual,   435 ;  Griswold   v.  Sliarpe,  2  Call-  541. 

fornia,  17.  i"  Warwick  v.  Cliase,23  Maryland,  154. 

*  Holmes  v.  Barclay,  4  Louisiana  An-  ^i  Hanna  v.  Loring,  11  Martin,  276. 
nual,  63;  McDonald  v.  Forsyth,  13  Mis-  '^  Handy  v.  Brong,  4  Nebraska,  60. 
souri,    649.      See    Irish    v.    Wright,    12  i^  Reed  v.  Beach,  2  Pinney,  26. 
Robinson  (La.),  563  ;  Hill  v.  Chatfield,  4  14  Sargeant  v.  Helmbold,  Harper,  219; 
Louisiana  Annual,  502.  Baune  v.  Thomassin,  6  Martin,  n.  s.  563. 

*  Porter  v.  Hildebrand,  14  Penn.  '^  Elliott  v.  Jackson,  3  Wisconsin,  649. 
State,  129.  See  Strock  v.  Little,  45  Ibid.  The  restriction  of  the  remedy  by  attach- 
416;  Coleman's  Appeal,  75  Ibid.  441.  meut  to  creditors  is  of  course  dependent 

[lOJ 


CHAP.  II.] 


CAUSE    OF   ACTION. 


§12 


§  11.  Before  proceeding  to  the  main  subject  of  inquiry,  it  may- 
be remarked,  that,  in  the  absence  of  any  statutory  provision  to  the 
contrary,  non-residents  as  well  as  residents  may  avail  themselves 
of  the  proceeding  by  attachment.^  And  where  the  remedy  is  al- 
lowed only  to  residents,  and  the  non-residence  of  the  plaintiff 
does  not  appear  on  the  face  of  the  proceedings,  the  defendant  can 
avail  himself  of  it  only  by  a  plea  in  abatement.^ 

§  12.  Who  may  be  regarded  as  a  creditor,  may  be  often  a  de- 


upon  tlie  terms  of  tlie  governing  statute  ; 
which  may  be,  and  in  some  States  are, 
apparently  sufficiently  comprehensive  to 
authorize  an  attachment  in  an  action 
founded  on  tort.  For  instance,  in  New 
York,  under  its  Code  of  Procedure,  allow- 
ing an  attachment  "in  an  action  for  tlie 
recovery  of  money."  the  question  arose 
whether  those  words  authorized  an  at- 
taclunent  in  an  action  for  a  wrong  ;  and, 
as  is  the  case  in  regard  to  many  subjects 
which  have  come  before  the  courts  of 
that  State,  we  find  reported  decisions  on 
both  sides,  with,  as  yet,  no  final  adjudica- 
tion by  the  court  of  last  resort.  In  1860, 
in  Hernstien  v.  Matthewson,  5  Howard 
Pract.  196,  in  the  Supreme  Court,  Ed- 
monds, J.  decided  tliat  tlie  Code  allowed 
an  attachment  against  a  non-resident 
defendant  in  every  action,  whether  for  a 
wrong  or  on  contract.  In  1859,  in  Gordon 
V.  Gaffey,  11  Abbott  Pract.  1,  Hogeboom, 
J.  held  that  an  attachment  did  not  lie  in 
an  action  for  setting  fire  to  the  barn  of 
the  plaintiff,  whereby  the  same,  with  all 
its  contents,  was  consumed.  In  1860,  in 
Floyd  V.  Blake,  11  Abbott  Pract.  349, 
Jami:s,  J.  sustained  an  attachment  in  an 
action  for  assault  and  battery.  In  1865, 
in  Shaffer  v.  Mason,  29  Howard  Pract. 
55,  18  Abbott  Pract.  455,  Ingraham, 
ScTHERLAND,  and  Clauke,  JJ.  decided 
that  an  attachment  would  not  lie  in  an 
action  of  trespass  cle  bonis  asportutis.  In 
1866,  the  Supreme  Court,  at  General 
Term,  held,  tiiat  an  attachment  would 
not  lie  in  an  action  founded  on  tort. 
Saildltsvene  v.  Arms,  82  Howard  Pract. 
280.  This  decision  was  given  after  the 
Code  of  New  York  had  been  amended  so 
as  to  authorize  an  attachment  "  in  an 
action  for  the  recovery  of  the  money." 
Since  this  decision  was  rendered,  the 
Code  has  been  further  amended  so  as  to 


authorize  the  remedy  "  in  an  action  aris- 
ing on  contract  for  the  recovery  of  money 
only  ;  "  which  leaves  no  room  for  using 
it  in  actions  founded  on  tort.  In  Ohio, 
an  attachment  may  issue  "  in  a  civil 
action  for  the  recovery  of  money,"  when 
the  defendant  has  "  fraudulently  or  crimi- 
nally contracted  the  debt  or  incurred  the 
obligation  for  which  suit  is  about  to  be 
or  has  been  brought ;  "  and  it  was  there 
held,  that  the  term  "  obligation  "  there  is 
equivalent  to  liuhilily,  and  that  an  attach- 
ment would  lie  in  an  action  for  damages 
for  an  assault  and  battery.  Sturdevant 
V.  Tuttle,  22  Ohio  State,  111. 

1  Woodley  v.  Shirley,  Minor,  24  ;  Ty- 
son V.  Lansing,  10  Louisiana,  444  ;  Posey 
V.  Buckner,  3  Missouri,  413;  Graham  v. 
Bradbury,  7  Ibid.  281  ;  McClerkin  v. 
Sutton,  29  Indiana,  407 ;  Mitchell  v. 
Shook,  72  Illinois.  492  ;  Gray  v.  Briscoe, 
6  Bush,  G87.  In  Ward  v.  McKenzie,  33 
Texas,  297,  the  court  said  :  "  It  may  be 
assumed  that  whatever  privilege,  benefit, 
or  advantage  a  resident  citizen  may  de- 
rive from  the  provisional  remedy  of  at- 
tachment, which  has  been  created  by  the 
attachment  law  of  this  State,  is  equally 
accessible  and  available  to  any  citizen  of 
any  State  of  the  United  States,  because 
the  Constitution  of  the  United  States  has 
declared  that '  the  citizens  of  each  State 
shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several 
States.'  All  the  civil  rights  and  obliga- 
tions conferred  or  imposed  by  the  laws 
of  a  State  upon  its  own  citizens,  may  be 
enjoyed  and  must  be  submitted  to  by  the 
citizens  of  other  States,  whenever  the 
action  of  a  State  tribunal  is  invoked  for 
their  adjustment  or  enforcement.  It  is 
not  a  matter  of  mere  comity  among  States, 
but  it  is  a  constitutional  guaranty." 

2  Calhoun  v.  Cozzens,  3  Alabama,  21. 

[11] 


§12 


CAUSE    OF   ^NOTION. 


[CITAP.  II. 


batable  question.  A  cretlitov  is  defined  l)y  a  recent  writer  to  be 
one  who  lias  a  riglit  to  require  of  another  the  fulfdnient  of  a  eon- 
tract  or  obligation.^  Anotlier  writer  considers  a  creditor  to  be 
one  who  gives  or  has  given  credit  to  another ;  one  who  trusts  an- 
other;  one  to  whom  a  debt  is  due:  in  a  larger  sense,  one  to 
whom  any  obligation  is  due.^  Webster  defines  the  word  thus: 
"A  person  to  M-hom  a  sum  of  money  or  other  thing  is  due,  by 
obligation,  promise,  or  in  law."  In  the  Civil  Law,  he  is  said  to 
be  a  debtor,  who  owes  reparation  or  damages  for  the  non- 
performance of  his  contract;^  and  of  necessity  he  is  a  creditor 
who  has  the  right  to  claim  such  reparation  or  damages.  The 
word  is  certainly  susceptible  of  latitudinons  construction,  and  it 
is  not  perhaps  as  important  here  to  arrive  at  its  general  meaning, 
as  to  ascertain  the  views  of  it,  and  of  what  constitutes  an  indebt- 
edness, which  have  received  judicial  sanction,  in  connection  with 
the  resort  to  attachment."^ 


1  1  Bouvier's  Law  Dictionary,  383. 

2  1  Biirrill's  Law  Dictionary,  SOL 

3  Hunt  V.  Norris,  4  Martin,  517 ;  1 
Pothier  on  Obligations,  L59. 

*  As  the  relation  of  debtor  and  creditor 
rests  upon  tlie  existence,  in  some  shape 
or  other,  of  a  chbt,  there  are  collateral 
sources  from  which,  in  addition  to  tlie 
direct  adjudications  presented  in  the  text, 
we  may  draw  illustrations  of  the  meaning 
of  that  word.  It  is  a  word  in  common 
use,  and  must  needs  have  a  natural,  plain, 
and  ordinary  signitication  ;  and  wherever, 
as  in  connection  with  the  subject  of  at- 
tachment, it  occurs  in  a  statute,  it  comes 
within  the  principle  of  construction  ex- 
pressed in  Dwarris  on  Statutes,  573,  tliat 
"the  words  of  a  statute  are  to  be  taken 
in  their  ordinary  and  familiar  signification 
and  import,  and  regard  is  to  be  bad  to 
their  general  and  popular  use  ;  "  and  laid 
down  by  Kent,  that  "the  words  of  a 
statute,  if  of  common  use,  are  to  be  taken 
in  tlieir  natural,  plain,  obvious,  and  ordi- 
nary signification  and  import." 

Blackstone  says,  "  The  legal  accepta- 
tion of  debt  is,  a  sum  of  money  due  by 
certain  and  express  agreement  :  as  by  a 
bond  for  a  determinate  sum  ;  a  bill  or 
note  ;  a  special  bargain  ;  or  a  rent  re- 
served on  a  lease  :  where  the  quantity  is 
fixed  and  specific,  and  does  not  depend 
upon  any  subsequent  valuation  to  settle  it." 
[1-J] 


This,  however,  is  not  the  popular  ac- 
ceptation of  the  word.  In  general  use  it 
is  not  regarded  as  a  technical  word,  nor 
written  or  spoken  in  a  restricted  or  tech- 
nical sense  ;  but  is  universally  employed 
as  expressing  whatever  one  man  owes  an- 
other, in  any  form  of  liability  arising  ex 
contrtictu.  This,  too,  is  its  signification, 
as  given  by  all  English  lexicographers. 
Resorting  to  them  we  find  the  following 
definitions :  — 

Bi/  Johnson  and  Walker:  "That  which 
one  man  owes  another."  Bi/  Barclui/  : 
"  That  which  one  person  owes  another." 
Bi/  Bailey:  "What  is  due  from  one  per- 
son to  another."  By  Richardson  :  "Any 
thing  had  or  held  of  or  from  another,  his 
property  or  right,  his  due  ;  that  which  is 
owed  to  him  ;  which  ought  at  some  time 
to  be  delivered  or  paid  to  him."  By 
Webster:  "  Tiiat  which  is  due  from  one 
person  to  another,  whether  money,  goods, 
or  services."  By  Worcester :  "  That 
which  one  person  owes  to  another  ;  due  ; 
obligation."  By  Tomlin  :  "  Debt,  in 
common  parlance,  is  a  sum  of  money 
due  from  one  person  to  another."  And 
in  1  Bouvier's  Institutes,  §  575,  it  is  said  : 
"He  toward  whom  an  obligation  has 
been  contracted,  is  called  the  oblif/ee  or 
creditor,  and  he  who  is  bound  to  fulfil  it 
is  the  ol/li(/or  or  debtor." 

These   definitions,  identical  in   spirit, 


CHAP.  II.] 


CAUSE   OF    ACTIOX. 


§13 


§  13.  In  New  York,  where  the  plaintiff  was  required  to  swear 
that  the  defendant  is  indebted  to  him,  the  court  said  it  did  not 


ami  almost  in  terms,  were  substanti.illy 
aduptetl  by  tlie  Supreme  Court  of  Massa- 
chusetts, in  Gray  v.  Bennett,  3  Metcalf, 
522,  52tJ,  where  tlie  question  presented 
was,  whether  the  right  of  action  wliieh 
an  insolvent  debtor  has,  in  that  Stijte,  to 
recover  tlireefold  tlie  amount  of  interest 
paid  by  him  on  a  usurious  contract,  was 
a  debt  wliicli  passed  by  an  assignment 
under  the  statute  to  the  assignee,  so  as  to 
enable  him  to  maintain  a  bill  in  equity  to 
recover  the  same.  The  court  held  that 
it  was,  and  said  :  "  The  word  '  debt '  is  of 
large  import,  including  not  only  debts  of 
record  or  judgments,  and  debts  of  spe- 
cialty, but  also  obligations  under  simple 
contracts  to  a  very  wide  extent ;  and  in  its 
popular  sense  includes  all  that  is  due  to  a  man 
under  am/ form  uf  obligation  or  promise." 

The  law  of  Bankruptcy  sheds  light  on 
this  subject.  In  Scotland,  in  the  proceed- 
ing of  sequestration  taken  by  a  creditor 
to  force  his  debtor  into  bankruptcy,  the 
question  would  necessarily  arise  as  to  the 
nature  of  the  debt  which  would  enable  a 
creditor  to  take  such  a  step.  Bell,  in 
his  Commentaries  (Vol.  II.  p.  319),  thus 
treats  of  the  "  nature  and  amount  of  the 
petitioning  creditor's  debt :  "  — 

"  Xuture  of  tlie  debt.  —  Debts  are  of 
three  kinds  :  pure,  future,  and  contingent. 
A  pure  debt  is  one  arising  on  an  obliga- 
tion or  engagement,  of  whicli  the  term 
of  payment  has  arrived  ;  and  of  whicli 
debt,  consequently,  payment  may  be 
immediately  enforced.  .  .  . 

"  But  a  debt  may  have  been  incurred, 
and  may  be  actually  due,  while  the 
amount  may  not  be  ascertained,  or  capa- 
ble of  being  so  stated  as  to  be  precisely 
demandable,  witiiout  the  aid  of  a  court 
of  justice.  Such  are  certain  claims  of 
danuiges.  Something  has  already  been 
saiil  of  claims  of  damages  (Vol.  I.  p.  654), 
and  a  distinction  may  be  marked  here, 
between  damages  for  breach  of  contract 
and  reparation  of  injury  from  delict  and 
quasi  delict. 

"  Where  a  claim  of  damages  arises  by 
convention  or  breach  of  contract,  the 
amount  may  sotnetinies  be  brought  to  a 
certain  test  or  criterion ;  and  in  such 
cases   it   may   be   doubled   whether   the 


person  entitled  to  such  damage  may  not 
swear  to  its  amount  as  a  debt,  to  the 
effect  of  sustaining  a  petition  for  seques- 
tration ;  as  it  is  not  a  debt  of  which  either 
the  existence  or  the  amount  depends 
upon  a  contingency  still  unascertained. 
Thus,  the  loss  sustained  by  non  delivery 
of  a  cargo  of  corn  according  to  agreement 
forms  a  claim  of  debt  for  reparation, 
ascertainable,  at  once,  by  an  event  already 
passed,  namely,  the  market  price  of  grain, 
or  by  the  amount  of  the  sum  actually 
paid  for  a  like  quantity  rendered  neces- 
sary for  fulfilling  the  creditor's  collateral 
contracts.  So  the  damage  occasioned  by 
failure  to  build  a  house  may  be  the  sum 
whicli  has  actually  been  paid  to  another 
to  supply  the  place  of  the  contractor." 

This  subject  has  received  attention  in 
connection  with  laws  existing  in  some 
States,  imposing  personal  liability  on 
stockholders,  for  debts  of  corporations. 
In  Massachusetts,  under  a  statute  requir- 
ing every  corporation  to  give  notice,  an- 
nually, in  some  newspaper,  of  the  amount 
of  all  assessments  voted  by  said  corpora- 
tion, and  actually  paid  in,  and  all  exist- 
ing debts,  and  declaring  that  if  any 
corporation  should  fail  to  comply,  the 
members  thereof  should  be  personally 
lialile  for  any  debt  then  due,  the  meaning 
of  the  word  "  debt  "  was  considered,  in 
connection  with  a  question  of  the  com- 
petency of  a  witness.  The  action  was 
in  assumpsit,  against  a  corporation,  for 
unliquidated  damages,  for  breach  of  con- 
tract. The  corporation  offered  as  a  wit- 
ness a  person  who  was  one  of  its  mem- 
bers when  the  cause  of  action  arose  ;  but 
it  appeared  that  no  notice  had  been  pub- 
lished as  required  by  the  statute,  and  his 
admissibility  was  contested  on  the  ground 
of  his  personal  liability  for  the  demand 
of  the  plaintiff  against  the  company. 
The  court  held  him,  for  that  reason,  in- 
competent as  a  witness,  and  in  the  course 
of  its  opinion  thus  summarily  disposed 
of  one  of  the  points  made  by  the  com- 
pany :  "For,  though  the  question  was 
made  whether  such  a  claim  for  unliqui- 
dated damages  is  a  debt,  within  the  mean- 
ing of  the  statute,  we  do  not  think  that  it 
admits  of  a  reasonable  doubt  that  all  such 
[13] 


§13 


CAUSE   OF   ACTION. 


[chap.  II. 


follow  that  the  demand  is  to  be  so  certain  as  to  fall  witliin  the 
technical  definition  of  a  debt,  or  as  to  be  susceptible  of  liquida- 


claims  for  damages  were  intended  to  be 
included  in  the  term  '  debts.'  "  Mill- Dam 
Foundery  i'.  Ilovey,  21  Pick.  417,  455. 

Again,  in  Carver  v.  Braintree  Man. 
Co.,  2  Story,  432,  this  question  came 
before  Justice  Story,  under  circum- 
stances of  a  similar  nature,  and  he  dis- 
cussed the  meaning  of  the  word  "  debt " 
at  much  lengtli,  and  with  his  usual  abil- 
ity, and  gave  it  a  very  extended  con- 
struction. Tlie  action  was  in  tort,  for  an 
infringement  of  a  patent.  At  the  trial, 
one  Edson,  who  was  a  member  of  the 
corporation  (the  defendant)  at  the  time 
of  the  supposed  infringement,  but  had 
since  sold  out  his  interest,  was  offered  as 
a  witness  for  tlie  corporation,  but  his  tes- 
timony was  rejected,  because  he  still  had 
an  interest  in  the  event  of  the  suit.  On  a 
motion  for  a  new  trial,  the  propriety  of 
this  ruling  was  carefully  considered,  and 
from  the  decision  of  the  court  the  follow- 
ing extract  is  made  :  — 

"  The  remaining  objection  is  to  the  re- 
jection of  the  testimony  of  Edson.  And 
here  it  is  that  I  have  entertained  some 
doubt,  upon  which  I  was  desirous  of 
hearing  the  further  argument  which  has 
now  been  had. 

"  The  defendants  were  created  a  cor- 
poration by  the  statute  of  Massachusetts 
of  the  14th  of  June,  1823,  and  were,  of 
course,  made  subject  to  all  the  liabilities 
and  requirements  of  the  general  statute 
of  1821,  ch.  28,  respecting  the  liabilities 
of  manufacturing  corporations.  That 
statute  provides  '  that  every  person  who 
shall  become  a  member  of  any  manufact- 
uring corporation,  which  may  be  here- 
after established  in  this  Commonwealth, 
shall  be  liable  in  his  individual  capacity 
for  all  debts  contracted  during  the  time 
of  his  continuing  a  member  of  such  cor- 
poration.' The  question  turns,  therefore, 
upon  the  meaning  of  the  words,  '  debts 
contracted,'  in  the  statute.  Do  they 
mean,  literally  and  strictly,  such  debts  as 
are  due  and  payable  in  money,  ex  con- 
tractu, by  the  positive  or  implied  engage- 
ments of  tiie  corporation,  and  resolve 
themselves  into  liquidated  or  determin- 
ate sums  of  money,  due  as  debts,  or  do 
they  extend  to  all  legal  liabilities  incurred 


by  the  corporation,  and  which,  when 
fixed  by  a  judgment,  or  award,  or  other- 
wise, are  debts  of  the  corporation"?  And 
if  the  latter  be  the  true  meaning,  then 
does  the  statute  liability  exist  only  from 
the  time  when  it  becomes  an  ascertained 
debt  of  the  corporation,  or  does  it  relate 
back  to  the  origin  of  the  liability,  and 
bind  the  corporators  from  that  time  7 

"  If  the  words  '  debts  contracted,'  in 
the  statute,  are  to  receive  the  limited 
construction,  that  they  are  applicable 
only  to  debts  in  the  strict  sense  of  the 
term,  that  is,  contracts  of  the  party  for 
the  payment  of  money,  and  nothing  else, 
it  is  obvious,  that  for  the  purposes  of  the 
statute,  which  although  in  some  sense  it 
may  be  deemed  penal,  is  also  in  another 
sense  remedial,  would  be  comparatively 
of  little  value.  Suppose  the  case  of  a 
contract  by  the  corporation  to  do  work, 
or  to  manufacture  goods  of  a  particular 
quality  or  character,  or  to  furnish  mate- 
rials, or  to  buy  cotton  or  wool  undeliv- 
ered, or  to  build  houses,  or  to  employ 
workmen,  and  the  contract  should  be 
entirely  unperformed  and  broken,  and 
refused  to  be  performed,  so  that  the  right 
of  the  other  party  would  be,  not  to 
money,  but  to  unliquidated  damages  for 
the  non-performance  or  refusal  to  per- 
form ;  if  these,  which  are  by  no  means 
unconmion  contracts,  should  be  without 
the  purview  of  the  statute,  it  would  have 
a  very  narrow  and  inadequate  range  and 
operation.  Yet  such  cases  sound  merely 
in  damages.  Suppose  a  manufacturing 
corporation  to  obstruct  its  neighbor's 
mill  privilege,  or  stop  his  mill  works,  by 
back  tlowage,  if  such  acts  be  not  within 
the  protection  of  the  statute,  we  see,  at 
once,  that  an  insolvent  corporation  might 
do  irreparable  mischief  without  any  just 
redress  to  the  other  party.  Suppose  such 
an  insolvent  corporation  should  uidaw- 
fully,  under  an  unfounded  claim  of  right, 
convert  100  or  1,000  bales  of  cotton  be- 
longing to  a  third  pers(m,  we  see  that  the 
mischief  could  be  redressed  only  by  an 
action  of  trover  for  unliquidated  damages, 
and  if  the  individual  corporators  were  not 
liable  therefor,  after  an  unsatisfied  judg- 
ment, the  statute   would  be  little   more 


CHAP.  Tl] 


CAUSE    OF   ACTION. 


§13 


tion    without   the    intervention  of  a  jury.      Being   indelted  is 
synonymous  with  owing  ;  it  is  sufficient,  therefore,  if  the  demand 


than  a  delusion.  If,  on  the  other  hand, 
we  stiould  construe  the  statute  broadly  as 
a  remedial  statute,  and  give  to  the  word 
'debts'  a  meaning  not  unusual,  as  equiv- 
alent to  '  dues,'  and  to  the  word  '  con- 
tracted '  a  meaning,  which,  though  more 
remote,  is  still  legitimate,  as  equivalent 
to  '  incurred  ; '  so  that  the  plirase  *  debts 
contracted,'  in  this  sense,  would  be  equiv- 
alent to  '  dues  owing,'  or  '  liabilities  in- 
curred,' the  statute  would  attain  all  tlie 
objects  for  which  it  seems  designed.  The 
Supreme  Court  of  Massachusetts,  in 
the  Mill-Dani  Foundery  v.  Hovey,  2\ 
Pick.  455,  lield,  under  the  statute  of 
1829,  ch.  53,  sec.  6,  which  makes  the 
stockholders  liable  for  the  debts  of  the 
corporation,  that  the  term  '  debts '  in- 
cluded a  claim  for  unliquidated  damages. 
That  was  a  case  arising  ex  contractu  ;  but 
the  language  certainly  extends  the  term 
'  debts  '  beyond  its  close  and  literal  mean- 
ing. And  if  it  covers  cases  of  unliqui- 
dated damages,  ex  contractu,  it  is  difficult 
to  say  why  it  should  stop  there,  and  not 
go  further  and  cover  cases  of  unliquidated 
damages  arising  from  torts  to  property. 
In  each  case  there  is  no  debt  until  the 
damages  are  ascertained  and  liquidated  ; 
and  tlien  the  debt  seems  to  relate  back  to 
its  origni.  Blackstone  says,  'a  debt  of 
record  is  a  sum  wliich  appears  to  be  due 
by  the  evidence  of  a  court  of  record ; 
thus,  when  any  specific  sum  is  adjudged 
to  be  due  from  the  defendant  to  the  plain- 
tiff in  an  action  or  suit  at  law,  this  is  a 
contract  of  the  higliest  nature,  being  es- 
tablished by  the  sentence  of  a  court  of 
judicature.'  Here  Blackstone  manifestly 
included  all  sorts  of  actions  or  suits,  where 
the  judgment  is  for  a  sum  certain,  what- 
ever may  be  its  nature  or  origin. 

"  I  agree  tliat  it  is  no  part  of  the  duty 
or  functions  of  courts  of  justice,  to  sup|)ly 
the  deficiencies  of  legislation,  or  to  cor- 
rect mischiefs  which  they  have  left  un- 
provided for.  That  is  not  tlie  question 
here.  But  the  question  is,  wiiether,  if 
the  words  of  a  statute  admit  of  two  in- 
terpretations, one  of  which  makes  tlie 
legislation  incomi)lete  for  its  apparent 
object,  and  tlie  other  of  which  will  cover 
and  redress  all  the  mischiefs,  tliat  should 


be  adopted,  in  a  statute  confessedly  reme- 
dial, which  is  the  most  narrow,  rather 
than  that  which  is  the  most  comprehen- 
sive, for  the  reason  only,  that  the  latter 
will  create  an  obligation  or  duty,  beyond 
what  is  imposed  by  the  common  law. 

"  It  seems  clear,  that,  in  common  par- 
lance, as  well  as  in  law,  the  term  is  in  an 
enlarged  sense  sometimes  used  to  denote 
any  kind  of  a  just  demand.  And  in  the 
Roman  law,  it  had  sometimes  the  like 
enlarged  signification.  Sed  utruin  ex  de- 
licto an  ex  contractu  Debitor  sit,  nihil  refert, 
says  the  Digest. 

"  Upon  this  subject,  1  confess,  that, 
with  all  the  lights  which  have  been 
thrown  upon  the  question  by  the  able 
arguments  at  the  bar,  1  am  not  without 
some  lurking  doubts.  But  having  re- 
flected much  upon  the  subject,  and  being 
in  the  same  predicament  which  Lord 
Eldon  is  said  to  have  suggested  as  hav- 
ing sometimes  occurred  to  himself,  that 
he  felt  doubts,  but  was  unable  to  solve 
them  to  his  own  entire  satisfaction,  I  have 
at  length  come  to  the  conclusion  that  the 
rejection  of  the  witness  as  an  interested 
witness  was  right.  I  follow  out  the  doctrine 
in  the  case  of  the  Mill-Dam  Foundery  v. 
Hovey,  wliich,  as  far  as  it  goes,  disclaims 
the  interpretation  of  the  word  '  debt,'  as 
limited  to  contracts  for  the  payment  of 
determinate  sums  of  money.  Passing 
that  line,  it  does  not  seem  to  me  easy  to 
say,  that  if  cases  of  unliquidated  damages 
may  be  treated  as  debts,  because  they 
end  in  the  ascertainment  of  a  fixed  sum 
of  money,  that  we  are  at  liberty  to  say 
that  the  doctrine  is  not  equally  applica- 
ble to  all  cases  of  unliquidated  damages, 
whether  arising  ex  contractu  or  ex  delicto. 
If  ultimately  it  ends  in  a  debt,  as  a  judg- 
ment for  damages  does,  that  case  asserts 
that  its  character  as  a  debt  relates  back  to 
its  origin.  Besides,  it  seems  to  me  upon 
principle  to  be  reasonable,  if  not  absolutely 
justified  by  authority,  to  hold,  that  if 
the  transaction  occurs  while  a  person  is  a 
member  of  the  corporation,  and  he  would, 
if  he  remained  a  member,  be  liable  for 
the  ultimate  debt  adjudged,  it  may  well 
be  treated  as  an  inchoate  debt,  consum- 
mated by  the  judgment.  Since  the  argu- 
[15] 


§  14  CAUSE    OF   ACTION.  [CHAP.  II. 

arise  on  contract.  It  was  therefore  held  tliat  an  attachment 
would  lie  in  an  action  founded  on  a  bill  of  lading,  whether  the 
goods  shipped  were  not  delivered,  or  were  delivered  in  a  damaged 
condition.^ 

§  13  a.  In  Connecticut,  where  the  remedy  is  confined  to  "  cred- 
itors," it  was  held,  that  it  was  available  for  the  recovery  of  a  claim 
for  unliquidated  damages  for  the  negligence  of  the  defendants  in 
towino-  a  raft  of  logs  from  New  York  to  New  Haven,  through 
Long  Island  Sound,  which  the  defendants  had  agreed  to  tow  safely ; 
whereby  the  raft  was  broken  up  and  the  logs  scattered,  and  a  large 
part  lost,  or  recovered  at  a  great  expense.^ 

§  14.  In  Pennsylvania,  under  a  statute  which,  by  a  strict  and 
literal  construction,  confined  the  writ  of  attachment  to  cases  of 
debt,  the  following  case  arose.  The  defendant  bound  himself  to 
deliver  to  the  plaintiff  teas  of  a  certain  quality,  and  suited  to  a 
particular  market ;  and  on  failure  to  do  so,  to  pay  the  difference 
between  teas  of  such  quality  and  such  as  should  be  delivered. 
Teas  agreeably  to  contract  were  not  delivered  ;  and  the  plaintiff 
commenced  suit  by  attachment,  swearing  that  the  difference 
amounted  to  ii4,500.  It  was  held,  that  this  was  a  debt  within  the 
meaning  of  the  statute,  for  which  an  attachment  would  lie. 
"  It  is  not  every  claim,"  said  the  court,  "  that,  uj^on  a  fair  con- 
struction of  this  law,  or  even  in  common  parlance,  can  be  de- 
nominated a  debt.  For,  in  the  first  place,  the  demand  must 
arise  out  of  a  contract,  without  which  no  debt  can  be  created  ; 
and  the  measure  of  the  damages  must  be  such  as  the  plaintiff 
can  aver  to  be  due  ;  without  which  special  bail  cannot  regularly 
be  demanded."  ^     If,  upon  the  facts  sworn  to,  a  contract  does  not 

ment  was   had,  my  attention   lias   been  ing  that  tlie  word  debt  has,  at  this  time, 

called  to  the  case  of  Gray  v.  Bennett,  3  and   in  this  country,  a  much  more  ex- 

JMetcalf,  522,  which,  in   several  respects,  tended  signification  than  was  allowed  to 

confirms    the    reasoning     which    I    had  it  when  Blackstone  gave  it  the  definition 

previously  adopted,   in    relation    to    the  above  quoted. 

meaning  of  the  word  '  debt,'  and  the  con-  ^  Lenox  v.   Rowland,  3  Gaines,  323  ; 

struction  which  it  ought  to  receive  in  a  In  re  Marty,  3  Barbour,  2'29. 
remedial  statute.     If  1  had  seen  the  case  '''  New  Haven  Saw-Mill  Co.  v.  Fowler, 

at  an  earlier  period,  it  would  have  some-  28  Conn.  103. 

what  abridged  my  own  researches  on  the  ^  Fisher  v.  Consequa,  2  Washington, 

same  subject."  C.  C.  382.     See  Redwood  v.  Consequa,  2 

From  these  citations,  as  well  as  those  Browne,  62;  Garland  v.  Cunniughain,  37 

in  tiie  text,  we  are  justified  in  consider-  Penn.  State,  228. 
[IGJ 


CHAP.  II.]  CAUSE  OF  ACTION.  §  18 

appear,  or  cannot  be  necessarily  implied,  an  attachment  will  not 
lie.i 

§  15.  In  Marj'land,  under  a  statute  requiring  the  plaintiff  to 
make  oath  that  the  defendant  is  bond  fide  indebted  to  him,  it  was 
held,  that  the  term  "  indebted  "  was  not  to  be  construed  in  a 
technical  or  strict  legal  sense  ;  but  that  where  the  contract  sued 
upon  furnished  a  standard  by  which  the  amount  due  could  be  so 
clearly  ascertained  as  to  enable  the  plaintiff  to  aver  it  in  his  affi- 
davit, or  the  jury,  by  their  verdict,  to  find  it,  an  attachment 
might  issue.2 

§  16.  In  Virginia  this  case  occurred.  A.  deposited  with  B.,  on 
storage,  a  quantity  of  flour,  to  be  redelivered  on  demand.  B.'s 
warehouse  took  fire,  and,  with  the  flour,  was  consumed.  A.  sued 
by  attachment  in  chancery,  to  recover  the  value  of  the  flour.  It 
was  objected  that  the  court  had  no  jurisdiction,  because  the  claim 
was  not  a  debt ;  but  the  Court  of  Appeals  overruled  the  objection 
and  sustained  the  proceeding.^ 

§  17.  In  Alabama,  where  the  statute  used  the  words  "  debt  or 
demand,"  and  required  the  plaintiff  "  to  swear  to  the  amount  of 
the  sum  due,"  it  was  held,  that  an  action  might  be  commenced  by 
attachment,  to  recover  for  a  breach  of  warranty  of  the  soundness 
of  a  slave  ;  the  damage  for  the  breach  of  warranty  being  the  value 
of  the  slave  at  the  time  of  the  warranty,  and  a  sum  capable  of 
ascertainment,  and  of  which  the  plaintiff  might  make  affidavit ; 
and  the  cause  of  action  arising  out  of  contract,  and  the  measure 
of  the  damages  being  ascertained  by  the  law  of  the  contract.*  In 
the  same  State,  under  another  provision,  authorizing  one  non- 
resident to  sue  another  non-resident  by  attachment,  where  the 
defendant  is  indebted  to  the  plaintiff,  either  by  judgment,  note,  or 
otherwise,  it  was  held,  that  those  terms  did  not  extend  beyond 
causes  of  action  for  which  either  debt  or  indebitatus  assumpsit 
would  lie.^ 

§  18.  In  Mississippi,  where  the  "  creditor  "  was  required  "  to 
make  oath  to  the  amount  of  his  debt  or  demand,"  it  was  held 

1  Jacoby    >;.    Gogell,    5    Sergeant    &  ^  i\.ter  v.  Butler,  1  Leigli,  285. 
Rawle,  400.  *  Weaver    v.   Puryear,   11    Alabama, 

2  Wilson  V.  Wilson,  8  Gill,  192.     See     941. 

Warwick  v.  Chase,  2:j  Maryland,  154.  ^Hazard  v.  Jordan,  12  Alabama,  180. 

2  [17] 


§  19  CAUSE   OF   ACTION.  [CHAP.  II. 

tliat  an  attacliment  would  lie  to  recover  damages  for  a  breach  of 
covenant.' 

§  10.  In  Louisiana,  under  a  statute  which  authorized  an  attach- 
ment to  issue  "  whenever  a  petition  shall  be  presented  foi»  the  re- 
covery of  a  debt,"  an  action  was  brought  by  attachment  to 
recover  the  value  of  certain  goods  shipped  on  a  steamboat,  and 
not  delivered  according  to  the  terms  of  the  bill  of  lading  ;  and 
the  case  was  considered  to  be  within  the  statute  ;  the  court  hold- 
ing that  any  obligation  arising  from  contract,  express  or  implied, 
either  for  the  payment  of  money  or  the  delivery  of  goods,  creates 
a  debt  on  the  part  of  the  obligor,  for  which  an  attachment  may 
issue,  whenever  the  amount  may  be  fairly  ascertained  by  the  oath 
of  the  obligee.^ 

In  the  same  State,  it  was  held,  that  an  attachment  would  lie,  in 
an  action  by  the  purchaser  against  the  vendor  of  a  slave,  alleged  to 
have  absconded  from  the  plaintiff,  and  to  have  returned  to  the 
vendor,  who  harbored  him  and  refused  to  give  him  up,  to  recover 
the  value  of  the  slave,  and  of  his  services  during  his  detention, 
and  damages  for  expenses  incurred  in  demanding  him,  and  for 
counsel  fees  ;  the  court  holding  that  the  retention  of  the  slave 
was  a  violation  of  the  contract  of  sale,  and  that  the  responsibility 
thereby  incurred  was  not  diminished  by  an  outrage,  perhaps  a 
crime,  being  superadded  to  it.^  The  law  under  which  the  writ 
was  sued  out  in  this  case  was  Art.  242  of  the  Louisiana  Code  of 
Practice,  in  these  words  :  "  The  property  of  a  debtor  may  be  at- 
tached in  the  hands  of  third  persons  by  his  creditors,  in  order  to 
secure  the  payment  of  a  debt,  whatever  may  be  its  nature, 
whether  the  amount  be  liquidated  or  not,  provided  the  term  of 
payment  have  arrived,  and  the  creditor  who  prays  the  attachment 
state  expressly  and  positively  the  amount  which  he  claims  ;  "  and 
Art.  243  requires  the  creditor  to  "  declare  under  oath  the  amount 
of  the  sum  due  him."  Under  this  law  an  attachment  was  sus- 
tained in  favor  of  the  owner  of  a  ship,  against  the  owner  of  a 
dock,  for  failure  to  fulfil  a  contract  by  the  latter  for  the  services 
of  his  dock  for  the  use  of  the  plaintiff's  ship.*  In  the  same  State 
it  was  held,  that  an  attachment  might  be  sued  out,  to  recover  the 

1  W'oolfolk  V.  Cage,  Walker,  300.  *  Hyde  v.  Higgins,  15  Louisiana  An- 

2  Hunt  V.  Korris,  4  Martin,  517.  nual,  1. 

3  Crane  v.  Lewis,  4  Louisiana  Annual, 
820. 

[18] 


CHAP.  II.]  CAUSE   OF   ACTION.  §  22 

value  of  books  delivered  to  the  defendant  to  be  bound,  and  which 
he  failed  to  return.^  And  again,  under  a  statute  authorizing  an 
attachment  "  in  every  case  where  the  debt,  damages,  or  demand 
is  ascertained  and  specified,"  it  was  decided  that  attachment 
would  lie  to  recover  damages  sustained  by  the  malfeasance  of 
one  in  the  employ  of  the  plaintiff,  whose  good  conduct  the 
defendant  had  guaranteed.  The  court  in  disposing  of  the  matter 
said:  "By  the  wording  of  the  statute,  some  cases  of  damages 
were  to  be  excluded,  but  then  it  is  equally  clear  that  some  were 
intended  to  be  included ;  and  we  think  this  is  one  of  them.  To 
require  that  the  damages  should  be  ascertained,  and  made  specific 
by  the  act  of  the  party  sued,  would  be  to  render  the  words  in  the 
statute  useless  ;  for  the  moment  this  liquidation  took  place,  they 
would  cease  to  be  damages,  and  become  a  debt.  The  act,  there- 
fore, contemplated  that  the  sum  due  should  be  settled  by  the 
oath  of  the  plaintiff  in  all  those  cases  where  he  could  ascertain  it. 
And  the  cases  in  which  he  can  do  so,  we  should  consider  those 
where  the  amount  does  not  depend  on  an  opinion  of  the  wrongs 
inflicted  on  his  feelings,  reputation,  or  person,  but  on  a  knowl- 
edge of  the  injuries  done  to  his  property."  ^ 

§  20.  In  Arkansas,  where  an  attachment  was  allowed  when 
any  person  "is  indebted,"  it  was  held  that  the  term  "indebted" 
is  sj'nonymous  with  oiving,  and  that  attachment  might  be  main- 
tained upon  an  unliquidated  as  well  as  a  liquidated  demand, 
arising  ex  contractu,  that  might  be  rendered  certain.  The  case 
was  an  action  for  damages  for  breach  of  a  contract  to  tow  a  boat 
up  Red  River,  and  deliver  certain  loads  of  corn  at  certain  places 
specified  in  the  contract.-^ 

§  21.  In  Indiana,  under  a  statute  authorizing  attachment  for 
"debts  or  other  demands,"  it  was  decided,  that  a  claim  for  dam- 
ages for  an  injury  to  flour,  while  in  possession  of  the  defendant 
as  a  common  carrier,  and  in  the  course  of  transportation,  was  a 
cause  of  action  for  which  an  attachment  would  lie."^ 

§  22.  In  Michigan,  the  statute  authorizes  an  attachment,  upon 

1  Turner   v.    Collins,    1    Martin,   x.  s.  '  Jones  i\  Buzzard,  2  Arkansas,  415. 

369.  *  liausniau  o.  Smith,  2  Indiana,  374. 

■^  Cross  V.  Richardson,  2  Martin,  n.  s. 
323. 

[19] 


§  24  CAUSE    OF   ACTION.  [CHAP.  11. 

an  affidavit  being  made  that  the  defendant  is  indebted  to  the 
plaintiff,  and  specifying,  as  near  as  may  be,  the  amonnt  of  such 
indebtedness,  over  and  above  all  legal  set-offs,  and  that  tlie  same 
is  due  upon  contract,  express  or  implied,  or  upon  judgment. 
Under  that  statute  a  plaintiff  in  attachment  filed  a  declaration, 
counting  upon  the  breach  of  an  express  contract  for  freight  of 
certain  vessels,  claiming  damages  therefor,  and  for  demurrage, 
and  upon  the  common  counts  in  indebitatus  as-nwipsit,  for  the  use 
of  said  vessels,  retained  and  kept  on  dunnage,  and  a  quantum 
meruit  count,  for  use,  &c.  The  court,  in  considering  the  question 
Avhether  the  declaration  disclosed  a  cause  of  action  which  would 
sustain  an  attachment,  said :  "What  is  an  indebtedness?  It  is 
the  owing  of  a  sum  of  money  upon  contract  or  agreement,  and 
in  the  common  understanding  of  mankind,  it  is  not  less  an 
indebtedness  that  the  sum  is  uncertain.  The  result  of  a  contrary 
doctrine  would  be  to  hold  any  liability  which  could  only  be  the 
subject  of  a  general  indebitatus  assumpsit,  quantum  meruit,  or 
quantum  valebant  count  in  a  declaration,  such  an  indebtedness  as 
could  not  be  the  subject  of  this  remedy  by  attachment.  Without 
fully  deciding  this  point,  which  is  not  necessarily  raised  in  this 
case,  we  see  no  reason  why  a  demand  arising  ex  contractu,  the 
amount  of  which  is  susceptible  of  ascertainment  by  some  standard 
referable  to  the  contract  itself,  sufficiently  certain  to  enable  the 
plaintiff,  by  affidavit,  to  aver  it  as  near  as  may  be,  or  a  jury  to 
find  it,  may  not  be  a  foundation  of  a  proceeding  by  attachment. 
In  the  present  case  the  contract  furnishes  such  standard,  equally 
as  does  any  contract  for  goods  sold,  or  work  or  labor  done,  with- 
out express  agreement  as  to  price  or  compensation."  ^ 

§  23.  In  the  cases  above  cited,  where  the  damages  were  unli- 
quidated, it  will  be  observed,  that  the  contracts,  for  breach  of 
which  suits  were  brought,  afforded  a  rule  in  themselves  for  ascer- 
taining the  damages,  and  upon  this  ground  the  actions  were  sus- 
tained. But  where  such  is  not  the  case,  it  has  been  considered 
that  attachment  cannot  be  resorted  to ;  as  will  appear  in  the  next 
three  sections. 

§  24.  In  the  Circuit  Court  of  the  United  States  for  the  third 
circuit,  a  case  arose,  in  which  damages  were  claimed  by  the  owner 

1  Roelofson  v.  Hatch,  3  Michigan,  277. 
[20] 


CHAP.    II.]  CAUSE   OF   ACTION.  §  25 

of  a  ship,  of  one  who  had  chartered  the  ship,  for  renouncing  the 
charter-party,  and  refusing  to  permit  her  to  proceed  on  the  con- 
templated vo3'age.  In  the  opinion  of  the  court,  dissolving  the 
attachment,  it  was  said  :  "  Whether  the  plaintiffs  can  maintain 
any  action  upon  this  charter-party,  by  reason  of  the  refusal  of  the 
defendant  to  take  on  board  a  cargo,  and  to  prosecute  a  voyage,  is 
a  question  which  has  not  been  considered  by  the  court ;  nor  is  it 
necessary  that  it  should  be  decided.  For,  if  an  action  can  be 
maintained  upon  it,  it  still  remains  to  be  inquired,  by  what  stand- 
ard are  the  damages,  which  the  plaintiffs  have  sustained,  on  ac- 
count of  the  refusal  of  the  defendant  to  perform  the  voyage,  to 
be  ascertained  ?  That  furnished  by  the  contract  was  a  certain 
sum  per  month,  during  the  voyage,  to  be  ascertained  at  its  ter- 
mination ;  but  that  event  never  took  place  ;  and  consequently 
no  rule  can  be  deduced  from  this  source  to  fit  the  present  case. 
This,  then,  is  a  case  in  which  unliquidated  damages  are  de- 
manded ;  in  which  the  contract  alleged  as  the  cause  of  action, 
affords  no  rule  for  ascertaining  them  ;  in  wdiich  the  amount  is 
not,  and  cannot,  with  propriety,  be  averred  in  the  affidavit ;  and 
which  is,  and  must  be,  altogether  uncertain,  until  the  jury  have 
ascertained  it ;  for  which  operation  no  definite  rule  can  be  pre- 
sented to  them."  ^ 

§  25.  In  New  Jersey,  the  statute  required  the  plaintiff,  in 
order  to  obtain  an  attachment,  to  make  oath  that  the  defendant 
"  owes  the  plaintiff  a  certain  sum  of  money,  specifying  as  nearly 
as  he  can  the  amount  of  the  debt  or  balance."  An  attachment 
was  obtained  in  an  action  of  covenant,  upon  an  affidavit  that  the 
defendant  owed  the  plaintiff  $300,  "  damages  he  had  sustained 
by  reason  of  the  breach  of  covenant  which  the  defendant  made  to 
the  p)laintiff  and  hath  broken."  The  nature  of  the  covenant  was 
not  disclosed  by  the  affidavit  or  otherwise  ;  and  the  attachment 
was  not  sustained,  because  the  cause  of  action  sounded  in  dam- 
ages merely,  and  those  damages  were  unliquidated,  and  could  not 
possibly  be  reduced  to  any  degree  of  certaint}'  without  the  inter- 
vention of  a  jury.  But  the  court  considered  that  where  a  cove- 
nant is  for  the  payment  of  a  sum  certain,  it  might  be  jDroceeded 
on  by  attachment.^   In  the  same  State,  it  was  decided  that  attach- 

1  Clark  ;;.  Wilson,  3  Wasliington  C.  C.  2  Jeffery  v.  Wooley,   5  Halsted,  123; 

560.    tSed  contra,  Redwood  v.  Consequa,  2     Barber  v.  Robeson,  3  Green,  17. 
Browne,  62. 

[21] 


§  27  CAUSE   OF   ACTION.  [CHAP.  II. 

nient  would  not  lie  for  the  recovery  of  a  penalty  intended  to 
secure  unliquidated  damages  ;  ^  and  in  Georgia,  that  it  would  not 
in  an  action  for  such  damages,  resulting  from  a  breach  of  cove- 
nant.^ 

§  26.  In  Alabama,  under  that  clause  of  the  statute  above  re- 
ferred to,  which  authorized  an  attachment  where  the  defendant 
was  indebted  to  the  plaintiff,  the  following  case  arose.  The  plain- 
tiff alleged  that  the  defendant  contracted  with  him  to  take  cer- 
tain iron  upon  a  vessel  of  the  defendant's  lying  at  New  Orleans 
and  bound  for  Providence.  The  iron  was  in  three  flatboats  which 
were  taken  alongside  the  vessel,  and  the  defendant  commenced 
taking  it  on  board  ;  but  he  left  a  quantity  of  it  in  the  boats  and 
refused  to  take  it,  alleging  that  it  would  not  pack  well  with  the 
remainder  of  the  freight.  One  of  the  boats,  containing  about 
forty  tons  of  the  iron,  of  the  value  of  $1,000,  sunk,  and  was 
totally  lost.  There  was  ample  time  for  the  defendant  to  have 
taken  the  iron  on  board  his  vessel,  and  its  loss  was  caused  by 
his  refusal  to  take  it  according  to  his  contract.  The  court, 
regarding  the  cause  of  action  as  one  for  general  and  unliqui- 
dated damages,  and  not  within  the  terms  of  the  law,  dissolved 
the  attachment.^ 

§  27.  The  cases  cited  in  the  next  preceding  three  sections  arose 
under  statutes  which  contemplated  indebtedness  as  the  foundation 
of  the  action.  But  in  some  States  the  language  which  would  limit 
the  remedy  to  cases  of  that  kind  has  been  replaced  by  more  com- 
prehensive terms  ;  and  we  will  notice  the  decisions  which  have 
been  made  under  laws  of  that  description. 

In  New  York,  under  a  law  authorizing  attachment  "  in  an 
action  arising  on  contract  for  the  recoveiy  of  money  only,"  it 
cannot  be  resorted  to  in  a  proceeding  to  foreclose  a  mortgage ;  * 
nor  in  an  action  for  breach  of  marriage  promise  ;  ^  nor  in  an 
action  for  the  recovery  of  damages  for  the  loss  by  negligence  of 
goods  which  the  defendant  undertook,  as  a  common  carrier,  to 

1  Cheddick  i'.  Marsh,  1  Zabriskie,  463;  subsequent  statute,  which  is  noticed  in 

Hoy  r.  Brown,  1  Harrison,  157;  I^icker-  §27. 

son  (;.  Simms,  Coxe,  rj9.     See   State  v.  ^  Hazard  r.  Jordan,  12  Alabama,  180. 

Beall,  3  Harris  &  McHenry,  347.  «  Van  Wyck  v.  Bauer,  9  Abbott  Pract. 

-  Mills   V.    Findlay,  14   Georgia,  230.  n.  s.  142. 
It  was,  however,  held  otherwise,  under  a  ^  Barnes  v.  Buck,  1  Lansing,  268. 

[22] 


CHAP.  II.]  CAUSE   OF   ACTION.  §  27 

convey  from  Boston  to  China.^  But  a  claim  for  damages  upon 
the  breach  of  a  contract  by  the  defendant  to  purchase  sound  corn 
for  the  plahitiffs,  was  considered  to  authorize  an  attacliment ;  the 
breach  comphxined  of  being  that  the  corn  was  not  sound,  and  the 
amount  chiimed  being  the  difference  betweeen  that  paid  and  that 
for  which  the  corn  was  sold.^ 

In  Minnesota,  under  a  statute  authorizing  an  attachment  in  an 
action  "for  the  recovery  of  money,"  it  may  be  resorted  to  in  any 
action,  either  ex  contractu  or  ex  delicto.^ 

In  Ohio,  under  a  statute  using  the  same  terms,  it  was  held, 
that  an  attachment  might  be  obtained  on  an  obligation  to  deliver, 
on  and  after  a  certain  day,  iron  metal  in  payment,  at  a  rate 
agreed  on,  for  iron  ore  sold  and  delivered,  and  that  it  might  be 
obtained  before  the  maturity  of  the  obligation  ;  *  and  that  it 
might  be  resorted  to  in  an  action  by  one  partner  against  his  co- 
partner, after  the  dissolution  of  the  firm,  to  recover  a  general 
balance  claimed  upon  an  unsettled  partnership  account.^  And  it 
was  decided  there,  that  an  attachment  could  not  lie  against  the 
property  of  a  married  woman,  in  an  action  to  charge  her  separate 
estate  with  the  payment  of  notes  made  by  her,  because,  as  no 
personal  judgment  could  be  rendered  against  her,  the  action  was 
not  "for  the  recovery  of  money."  ^ 

In  Georgia,  under  a  statute  authorizing  suits  by  attachment 
"  in  all  cases  of  money  demands,  whether  arising  ex  contractu  or 
ex  delicto,''  an  attachment  may  be  resorted  to  in  an  action  for 
breach  of  a  promise  of  marriage  ',"'  and  in  one  for  the  seduction  of 
plaintiff's  daughter.^  The  same  court  decided  that  it  could  not 
be  maintained  on  a  note,  before  it  became  due,  which  was  pay- 
able "  in  notes  good  and  solvent  when  this  becomes  due,"  though 
the  statute  authorized  an  attachment  on  a  "money  demand" 
before  its  maturity ;  it  being  considered  that  such  a  note  was  not 
a  money  demand  until  after  it  fell  due  and  remained  unpaid.^ 

Under  the  law  of  California,  authorizing  the  writ  in  cases  upon 
"  contract  for  the  direct  payment  of  money,"  it  was  held,  that  an 

1  Atlantic  Mut.  Ins.  Co.  v.  McLoon,  =  Goble  v.  Howard,  12  Oliio  State, 
48  Barbour,  27.  165. 

2  Lawton  v.  Kiel,  51  Barbour,  30;  34  ^  Hoover  v.  Gibson,  24  Ohio  State, 
Howard  Pract.  4t;5.  389. 

3  Davidson  v.  Owens,  5  Minnesota,  69.  ''  Morton  r.  Pearman,  28  Georfjia,  323. 

4  Ward   V.  Howard,   12   Ohio    State,  8  Graves  v.  Strozier,  37  Georgia,  32. 
158.  9  Monroe  i'.  Bishop,  29  Geor^'ia,  159. 

[•23] 


§  28  CAUSE   OF   ACTION.  [CHAP.  II. 

uiulertaking  filed  b}'"  an  appellant,  "  that  lie  will  pay  all  the  dam- 
ages and  costs  which  may  be  awarded  against  the  defendant  on 
the  api)eal,  not  exceeding  Jf^SOO,  and  that  if  the  judgment  appealed 
from,  or  any  part  thereof,  be  affirmed,  the  appellant  shall  pay  the 
amount  directed  to  be  jjaid  thereby,  or  the  part  of  such  amount 
as  to  Avhich  the  same  shall  be  affirmed,  if  affirmed  only  in  part, 
and  all  damages  and  costs  which  shall  be  awarded  against  the 
appellant  on  the  appeal,"  was  a  contract  for  the  direct  payment 
of  money  within  the  meaning  of  the  law.^  And  under  the  same 
law  it  was  held,  that  the  official  bond  of  a  county  treasurer  was 
an  obligation  for  the  direct  payment  of  money,  on  which  an 
attachment  might  be  issued.^ 

§  27  a.  The  debt  for  which  an  attachment  may  issue  must  pos- 
sess an  actual  character,  and  not  be  merely  possible,  and  depend- 
ent on  a  contingency  which  may  never  happen.  Therefore, 
where  the  plaintiff  alleged  as  a  ground  of  attachment,  that  he 
was  security  upon  a  draft  drawn  for  the  defendant  in  the  sum  of 
$900,  and  that  the  defendant  was  about  to  remove  himself  out  of 
the  State,  so  that  the  ordinary  process  of  law  could  not  be  served 
on  him,  and  that  thereby  the  plaintiff  would  probably  have  the 
draft  to  pay,  or  suit  would  have  to  be  brought  for  the  same  in 
another  State ;  it  was  held,  that  the  attachment  could  not  be  sus- 
tained.^ 

§  28.  And  though,  as  in  some  States,  an  attachment  will  lie  on 
a  debt  not  due,  yet  there  must  be  an  actual  subsisting  debt,  which 
will  become  due  by  the  efflux  of  time.  Therefore,  where  suit 
was  brought  on  the  4th  of  Februarj',  by  the  drawer  against  the 
acceptor  of  bills  of  exchange,  which  had  been  protested  before, 
but  were  not  taken  up  by  the  drawers  until  some  days  after  that 
day,  though  on  that  day  an  agreement  was  made  by  the  drawers 

•  Hathaway   v.   Davis,  33   California,  maintain    a    bill    against    the    principal 

161.  debtor,  in  order  to  protect  himself  against 

2  Monterey   v.  McKee,  51   California,  loss  by  reason  of  the  debtor's  failure,  be- 

255.  fore   he   has   actually  been  subjected  to 

8  Benson  v.  Campbell,  6  Porter,  455 ;  liability   as    guarantor.      This    doctrine, 

Taylor  v.  Drane,  13  Louisiana,  62;  Har-  however,  is  sustainable  only  on  equitable 

rod   V.   Burgess,  5   Robinson   (La.),  449.  grounds,  under  equity  jurisdiction,  and 

In  Moore  v.  Holt,  10  Grattan,  284,  in  a  has  not,  so  far  as  I  iiave  discovered,  been 

proceeding    by   attachment    in   chancery,  recognized  as  applicable  to  a  proceeding 

authorized   by  the   laws   of  Virginia,  it  at  law. 
was   decided,    that    a    guarantor    might 
[24] 


CHAP.  II.]  CAUSE   OF   ACTION.  §  29 

to  take  them  up ;  it  was  considered  that  the  drawers  could  main- 
tain no  action  until  the  bills  were  actually  taken  up,  and  that  the 
comi^letion  of  the  agreement  could  not  relate  back  to  the  time  it 
was  made,  and  reinvest  the  drawers  with  the  title  to  the  bills  on 
the  4th  of  February.^  And  so,  where  a  creditor,  for  the  accommo- 
dation of  his  debtor,  accepted  a  bill  drawn  by  the  debtor,  payable 
a  certain  number  of  days  after  date,  for  the  amount  of  the  debt, 
with  interest  to  maturity,  and  the  bill  was  discounted  by  a  bank, 
and  the  proceeds  applied  to  the  extinguishment  of  the  original 
debt ;  it  was  decided  that  the  acceptor  was  not  a  creditor  of  the 
drawer  until  the  maturity  of  the  bill  and  his  payment  of  it ;  and 
that  his  payment  of  it  at  maturity  could  not  retroact  so  as  to  give 
validity  to  an  attachment  sued  out  by  him  before  the  payment.^ 
And  so,  where  an  attachment  was  obtained  on  the  9th  of  Novem- 
ber, to  recover  damages  for  the  non-fulfilment  of  a  contract  to 
deliver  a  certain  amount  of  cotton  "  during  the  succeeding  fall," 
it  was  held  void,  because  the  defendant  was  not  then  in  default, 
and  no  claim  for  damages  had  accrued.^ 

§  29.  In  New  York  this  case  arose.  A.  agreed  with  B.,  that  if 
B.  would  sell  him  goods  on  credit,  and  also  guarantee  his  liability 
to  C.  for  a  certain  sum,  he  would  ship  and  consign  to  B.  all  the 
fish  he  should  become  possessed  of  in  his  business  in  Nova  Scotia, 
as  security  for  the  goods  and  the  guaranty.  B.  sold  him  the 
goods  on  credit,  and  became  guarantor  to  C;  and  afterwards  A. 
sent  fish  from  Nova  Scotia,  but  refused  to  consign  them  to  B.; 
whereupon,  and  before  the  term  of  credit  had  expired,  B.  ob- 
tained an  attachment  against  A^  It  was  objected  that  no  cause 
of  action  existed  until  the  expiration  of  the  credit  on  the  sale  of 
the  goods,  and  that  therefore  the  attachment  should  be  dis- 
charged ;  but  the  court  held,  that  the  contract  to  give  security 
was  broken,  and  an  action  might  then  be  sustained  for  the  breach 
of  it,  without  any  reference  to  the  time  of  the  credit,  except  that 
if  a  judgment  were  obtained  before  the  credit  expired,  the  court 
had  sufl&cient  equity  powers  over  its  own  judgments  to  postpone 
the  collection  of  the  amount  of  the  judgment  until  the  credit 

^  Blanchard  v.  Grousset,  1  Louisiana  Todd  ii.  Sliouse,  14  Ibid.  426  ;  Hearne 
Annual,  96.  v.  Keath,  63  Missouri,  84. 

2  Kead  v.  Ware,  2  Louisiana  Annual,  ^  ]\loor2   v.   Dickerson,   44   Alabama, 

498.     See  rrice  v.  Merritt,  13  Ibid.  52G ;     485. 

[•25] 


§  30  CAUSE   OF    ACTION.  [CHAP.  II. 

should  expire,  or  to  vacate  it,  if  the  security  agreed  on  should 
be  given. ^ 

§  30.  In  a  case  Avhich  went  up  to  the  Supreme  Court  of  the 
United  States  from  Louisiana,  the  following  facts  were  pre- 
sented. B.,  of  Ciiarleston,  South  Carolina,  being  indebted  to  Z. 
&  Co.,  of  New  Orleans,  for  the  proceeds  of  a  cargo  of  sugar  con- 
signed to  him,  Z.  &  Co.  drew  on  liim  certain  bills  of  exchange, 
which  were  accepted  for  the  full  amount  of  those  proceeds,  and 
Avere  all  negotiated  to  third  persons,  and  were  outstanding,  and 
three  of  tliem  were  not  yet  due,  when  B.  made  an  assignment  for 
the  benefit  of  his  creditors.  Z.  &  Co.,  upon  hearing  of  it, 
brought  suit  against  B.  for  the  full  amount  of  the  proceeds  of  the 
cargo  of  sugar,  and  attached  his  property.  The  question  was, 
whether,  under  the  law  of  Louisiana  allowing  an  attachment  to 
be  sued  out  upon  a  debt  not  j'et  due,  this  attachment  could  be 
maintained.  The  court  said :  "  It  is  plain  to  us  that  there  was 
no  debt  due  Z.  &  Co.  at  the  time  when  the  attachment  was  made. 
The  supposed  debt  was  for  the  proceeds  of  a  cargo  of  sugar  and 
molasses,  sold  by  B.  on  account  of  Z.  &  Co.  Assuming  those 
proceeds  to  be  due  and  payable,  Z.  &  Co.  had  drawn  certain  bills 
of  exchange  upon  B.,  which  had  been  accepted  by  the  latter,  for 
the  full  amount  of  those  proceeds ;  and  all  of  these  bills  had 
been  negotiated  to  third  persons,  and  were  then  outstanding, 
and  three  of  them  were  not  j^et  due.  It  is  clear,  upon  principles 
of  law,  that  this  was  a  suspension  of  all  right  of  action  in  Z.  & 
Co.,  until  after  those  bills  had  become  due  and  dishonored,  and 
were  taken  up  by  Z.  &  Co.  It  amounted  to  a  new  credit  to  B. 
for  the  amount  of  those  acceptances,  during  the  running  of  the 
bills,  and  gave  B.  a  complete  lien  upon  those  proceeds,  for  his 
indemnity  against  those  acce^^tances,  until  they  were  no  longer 
outstanding  after  they  had  been  dishonored. 

"  It  is  true  the  statute  law  of  Louisiana  allows,  in  certain  cases, 
an  attachment  to  be  maintained  upon  debts  not  yet  due.  But  it 
is  only  under  very  special  circumstances ;  and  the  present  case 
does  not  fall  within  any  predicament  prescribed  by  that  law.  The 
statute  does  not  apply  to  debts  resting  in  mere  contingency,  whether 
they  will  ever  become  due  to  the  attaching  creditor  or  not."^ 

1  Ward  V.  Begg,  18  Barbour,  1.39.  Annual,  324 ;  Henderson  v.  Thornton,  37 

2  Black  »;.  Zaoharie,  3  Howard,  Sup.  Ct.     Mississippi,  448. 
483.     See  Denegre  v.  Milne,  10  Louisiana 

[1>6] 


CHAP.  11.]  CAUSE  OF  ACTION.  §  34 

§  31.  In  Ohio,  under  a  provision  allowing  an  attachment  in 
certain  cases  before  the  debt  has  become  due,  it  was  decided  that 
the  holder  might  proceed  in  that  way  against  the  indorser  of  a 
negotiable  note  ;  tlie  court  regarding  the  latter  as  a  debtor  with- 
in the  meaning  of  the  statute.^ 

§  32.  In  Massachusetts,  a  question  arose  as  to  the  time  when  a 
demand  was  due,  so  as  to  be  sued  upon.  A.  accepted  bills  for 
the  accommodation  of  B.,  and  paid  them  on  the  second  day  of 
grace,  and  on  the  morning  of  the  third  day  of  grace  sued  out  an 
attachment  against  B.,  to  recover  the  money  so  paid  for  his  ac- 
commodation. The  defendant  contended  that  the  plaintiff  could 
not  bring  his  suit  until  the  expiration  of  the  last  day  of  grace ; 
but  the  court,  while  recognizing  the  doctrine  that  an  action  could 
not  have  been  maintained  07i  the  bills  until  after  that  day,  yet 
held  that  the  "  payment  before  the  day  was  good  payment  at  the 
day,"  and  that  the  right  of  action  existed  at  any  time  on  the  last 
day  of  grace. 2 

§  33.  Where  an  attachment  is  authorized  for  a  debt  not  due, 
if  the  grounds  of  attachment  be  peculiar  to  that  case,  they  can- 
not be  resorted  to  for  the  recovery  of  a  debt  already  due.  If 
with  the  debt  not  due  there  be  combined  a  claim  that  is  due,  the 
attachment  will  be  good  as  to  the  former,  but  not  as  to  the  latter.^ 
If  an  action  be  V)rought  as  upon  a  debt  past  due,  and  it  be  so 
averred  in  the  affidavit  for  an  attachment,  and  the  debt  be  not  in 
fact  due,  the  attachment  should  be  quashed.* 

§  33  a.  In  a  suit  on  a  debt  not  due,  it  is  erroneous  to  enter 
judgment  for  the  plaintiff  before  the  maturity  of  the  demand.^ 

§  34.  Attempts  have  been  made  by  one  partner  to  sue  another 
partner  by  attachment,  for  alleged  balances  due  on  account  of 
the  partnership  transactions ;  and  in  reference  to  such  cases  the 
following  decisions  have  been  had. 

In  Illinois,  under  a  statute  authorizing  an  attachment  where 
*'  any  creditor  shall  file  an  affidavit,  setting  forth  that  any  person 
is  indebted  to  him,  stating  the  nature  and  amount  of  such  in- 

1  Smead  v.  Clirisfield,  1  Handy,  442.  *  Cox  v.  Reinliardt,  41  Texas,  591. 

2  Wliitwell  r.  Brigliam,  I'J  Pick.  117.  »  Ware   v.   Todd,    1    Alabama,    199; 
8  Levy   V.   .Millinan,   7   Georgia,  167;     Jones  i'.  Holland,  47  Ibid.  732. 

Uant'orth  v.  Carter,  1  Iowa,  546. 

[27] 


§  34  CAUSE   OF   ACTION.  [CHAP.  H. 

debtedness,  as  near  as  may  be,"  it  was  beld,  that  an  action  of  ac- 
count might  be  instituted  b}'  attacliment,  by  one  partner  in  a 
commercial  adventure  against  another.  The  court  remarked: 
"  The  hiw  was  designed  to  furnish  a  creditor  with  the  means  of 
collecting  his  debt,  in  a  case  where  he  would  be  unable  to  do  so 
in  the  ordinary  mode  of  proceeding,  and  we  can  see  no  reason 
why  it  should  not  be  as  applicable  to  actions  of  account  as  to  any 
other  class  of  cases.  The  claim  of  a  joint-tenant,  tenant  in  com- 
mon, or  coparcener,  is  just  as  sacred  as  that  of  any  other  creditor ; 
and  because  he  cannot  resort  to  the  more  usual  common-law  ac- 
tions to  enforce  his  rights,  affoi'ds  no  reason  why  he  should  be 
deprived  of  the  benefit  of  the  attachment  act,  when  he  presents 
a  case  that  would  authorize  an  attachment  were  he  permitted  to 
sue  in  debt  or  assumpsit. 

"  As  to  the  sufficiency  of  the  affidavit  there  can  be  no  question. 
After  setting  forth  the  dealings  between  the  parties,  and  the  na- 
ture of  the  indebtedness,  with  great  particularity,  it  alleges  that 
the  defendant,  by  means  of  the  premises,  is  indebted  to  the  plain- 
tiff in  a  sum  stated,  and  that  the  defendant  is  not  a  resident  of 
the  State.  Upon  such  an  affidavit  an  attachment  may  properly 
issue."  ^ 

In  Georgia,  where  a  contract  was  entered  into  between  a 
freedman  and  a  landlord,  to  make  a  crop  for  one  year  ;  the  land- 
lord to  furnish  the  land  and  the  stock,  and  the  freedman  to  work 
the  same,  and  to  receive  for  his  labor  one-half  of  the  crop  made  ; 
and  the  crop  was  made  and  gathered  ;  and  the  landlord  refused 
to  deliver  to  the  freedman  his  proportion  of  the  crop  ;  it  was 
decided  that  this  was  not  a  case  of  partnership ;  that  the  freed- 
man could  make  out  an  account  against  the  landlord  for  his  share 
of  the  crop,  and  enforce  the  collection  of  the  same  by  attach- 
ment.2 

In  Louisiana,  an  action  by  attachment,  by  one  general  part- 
ner against  another,  for  an  amount  alleged  to  be  due,  growing 
out  of  the  transactions  of  the  partnership,  cannot  be  maintained.^ 
And  so  in  South  Carolina,^  and  California.^ 

^  Humphreys  v.  Matthews,  11  Illinois,  Brinegar  v.  Griffin,  2  Louisiana  Annual, 

471.    See  Brinegar  v.  Griffin,  2  Louisiana  151;  Johnson  v.  Short,  Ibid.  277. 

Annual,  154.  ■*  Rice   v.    Beers,    1   Rice's   Digest  of 

2  Hollowayy.Briukley,  42  Georgia,  226.  South  (Carolina  Reports,  75.     Tliis  case 

2  hewy  V.    Levy,   11   Louisiana,  581 ;  cannot  pro.bably  be  found  in  any  of  the 


5  Wheeler  v.  Farmer,  38  California,  203. 
[28] 


CHAP.  II.]  CAUSE   OF   ACTION.  §    35 

In  Kansas,  to  authorize  one  partner  to  sue  another  by  attach- 
ment, there  must  first  have  been  an  accounting  and  ascertainment 
of  a  balance  which  the  defendant  had,  expressly  or  impliedly, 
promised  to  pay.^ 

In  New  York  an  action  was  instituted  by  one  against  his  former 
partner,  and  the  complaint  alleged  the  former  partnership,  a  dis- 
solution thereof,  an  assignment  of  the  plaintiff's  interest  to  the 
defendant,  and  the  defendant's  agreement  to  pay  the  partnership 
liabilities,  etc.,  and  divide  the  surplus  ;  that  the  surplus  was  large  ; 
that  the  defendant  had  applied  the  assets  to  his  own  private  use, 
and  refused  to  render  any  account  to  plaintiff ;  that  a  large  sum 
of  money  was  due  to  plaintiff,  but  he  could  not  state  the  amount; 
and  he  demanded  an  account,  and  that  the  defendant  pay  what, 
upon  the  accounting,  might  be  found  due.  Long  after  the  action 
was  instituted,  the  plaintiff  obtained  an  attachment,  upon  an 
affidavit  alleging  that  more  than  $25,000  was  due  him  from  the 
defendant.  A  supplementary  affidavit  stated  the  amount  at 
$22,000.  A  motion  to  discharge  the  attachment  was  sustained, 
because  the  plaintiff,  in  stating  the  grounds  of  his  claim,  disclosed 
that  he  did  not  know,  and  could  not  know  until  an  account  had 
been  taken,  what,  or  in  fact  whether  any  thing,  was  due  him  ; 
and  that  his  mere  opinion  or  belief  was  not  sufficient  to  warrant 
the  granting  of  the  process.^ 

§  35.  The  right  of  a  creditor  to  sue  his  debtor  by  attachment, 
is  not  impaired  by  his  holding  collateral  security  for  the  debt.  The 
Supreme  Court  of  Massachusetts  once  held,  that  a  creditor  who 
had  received  personal  property  in  pledge  for  the  payment  of  a 
debt,  could  not  attach  other  property  for  that  debt,  without  first 
returning  the  pledge  ;  ^  but  this  position  was  afterwards  repeat- 
edly overruled  by  that  court.*     And  a  mortgagee  of  personal 

volumes  of  the  South  Carolina  Reports,  ^  Ackroyd    r.    Ackroyd,    11     Abbott 

but  it  is  no  doubt  authentic.     Mr.  Rice's  Pract.  345;  20  Howard  Pract.  93;  Guil- 

Digest  contains  many  cases   decided   in  hon  v.  Lindo,  9  Bosworth,  601  ;  Ketciium 

Soutli   Carolina,   and   nowhere    else    re-  v.  Ketchum,  1  Abbott  Pract.  n.  s.  157. 

ported.      In    tliat    State    they   are   often  ^  cleverly  v.  Brackett,  8  Mass.  150. 

referred  to  in  tiie  opinions  of  the  Court  *  Cornwall    v.    Gould,   4    Pick.    444  ; 

of  Appeals  as   authoritative.     Whoever  Beckwith  c.  Sibley,  11  Ibid.  482;  Wiiit- 

would  understand  the  reason  of  tlie  ab-  well  v.  Brigham,  19  Ibid.  117.    In  Taylor 

sence  of  those  cases  from  the  Reports,  ia  v.  Cheever,  6  Gray,  146,  the  court  said : 

referred  to  the  I'reface  to  Nott  &  Mc-  "  The  decision  in  Cleverly  v.  Brackett, 

Cord's  Reports.  that   a   creditor   to   whom   a   debtor  has 

1  Treadway  v.  Ryan,  3  Kansas,  4.37.  pledged  a  chattel  as  security  for  a  debt, 

[29] 


§36 


CAUSE   OF   ACTION. 


[chap.  II. 


property  may  waive  his  rights  under  tlie  mortgage,  and  attach  the 
mortgaged  property  to  satisfy  the  mortgage  debt,^  even  after  he 
has  taken  possession  of  it  under  the  mortgage.''^ 

§  35  a.  In  Illinois  a  creditor  having  a  judgment  against  his 
debtor,  upon  which  he  has  the  right  to  issue  execution,  may  sue 
b}''  attachment  upon  that  judgment  in  the  same  court  in  which  it 
was  rendered.^ 

§  36.  If  the  cause  of  action  for  which  the  attachment  is  ob- 
tained, be  one  upon  which  that  process  might  not  be  legally  issued, 
the  defect  cannot  be  reached  by  demurrer  to  the  declaration.*  A 
motion  to  dissolve,  or  a  plea  in  abatement,  would  be  the  proper 
course.  And  no  advantage  can  be  taken  of  the  defect  after  ver- 
dict, where  the  defendant  appears  and  pleads  to  the  merits." 
Nor  can  a  variance  between  the  affidavit  and  attachment  and  the 


cannot,  in  a  suit  for  tlie  debt,  attach 
other  property  of  the  debtor  without  first 
returning  tlie  pledge,  is  contrary  to  all 
the  autliorities  before  and  since,  and  is  not 
to  be  regarded  as  law."  See  Ciiapnian 
V.  Clougl),  6  Vermont,  123.  In  California 
an  attachment  may  issue  if  the  debt  "is 
not  secured  by  a  mortgage,  lien,  or 
pledge,  upon  real  or  personal  property." 
Under  this  law  this  case  arose.  A.  sold 
real  estate  to  B.,  and,  to  secure  part  of 
the  purchase-money,  B.  executed  to  A. 
promissory  notes ;  for  the  amount  of 
which,  under  the  laws  of  that  State,  A. 
had  an  equitable  lien  upon  the  land.  He 
sued  out  an  attachment  against  B.  on 
one  of  the  notes,  and  B.  moved  to  dis- 
solve the  attachment  because  A.  had  the 
equitable  lien.     In  support  of  the  motion, 

B.  claimed  that  thougii  the  conveyance 
of  the  land  was  made  to  him,  and  his 
notes  were  given  to  secure  the  purchase- 
money,  yet  the  purchase  was,  in  fact, 
made  by  him  for  the  benefit  of  C,  to 
wliom  he  immediately  conveyed  the  prop- 
erty, without  receiving  any  consideration 
therefor,  and  the  title  still  remained  in 

C,  who  had  furnished  tiie  cash  portion 
of  the  purchase-money,  —  the  first  pay- 
ment, and  had  paid  one  of  the  notes 
given  for  tlie  remainder.  The  court  over- 
ruled the  motion,  and  said  :  "  The  policy 

[30] 


of  the  law  is,  that  a  creditor,  holding  a 
security  by  way  of  '  mortgage,  lien,  or 
pledge,  upon  real  or  personal  property,' 
shall  not  resort  to  the  summary  process 
of  attachment  until  he  has  exhausted  his 
security.  But  it  must  be  a  lien  of  a  fixed, 
determinate  character,  capable  of  being 
enforced  with  certainty,  and  depending 
on  no  conditions.  If  the  land  has  been 
alienated  by  the  vendee, it  is  not  incumbent 
on  the  vendor  to  go  through  a  litigation 
with  the  purchaser,  in  order  to  ascertain 
whether  he  is  a  purchaser  for  value,  with- 
out notice,  before  resorting  to  his  attach- 
ment. The  vendee,  by  alienating  the 
land,  has  not  only  interposed  an  obstacle 
in  the  way  of  enforcing  the  lien,  but  has 
rendered  it  doubtful  whether  the  lien  is 
not  wholly  defeated.  He  cannot  compel 
the  vendor  to  solve  this  doubt  by  pro- 
ceeding against  the  purchaser  before  su- 
ing out  his  attachment."  Torter  y.  Brooks, 
35  California,  199. 

1  Buck  V.  IngersoU,  11  Metcalf,  226; 
Whitney  v.  Farrar,  51  Maine,  418. 

2  Libby  V.  Cushman,  29  iVlaine,  429. 

3  Young  V.  Cooper,  59  Illinois,  121. 

*  Cain  ('.  Mather,  3  Porter,  224 ;  Jordan 
V.  Hazard,  10  Alabama,  221. 

&  Hedus  V.  Wofford,  4  Smedes  & 
Marshall,  679  ;  Marshall  v.  White,  8  Por- 
ter, 651. 


CHAP,  n.]  CAUSE   OF   ACTION.  §  37  a 

complaint  be  taken  advantage  of  by  demurrer  ;  ^  but  may  by  plea 
in  abatement.^ 

§  36  a.  Where  an  attachment  is  obtained  on  a  cause  of  action 
not  authorizing  it,  and  the  defendant  is  not  served  with  process, 
the  proceeding  is  a  nullity,  and  the  court  has  no  jurisdiction  of  the 
action,  and  no  subsequent  amendment  of  the  pleadings  can  give 
the  proceedings  any  vitality  under  that  writ.  Such  amendment 
merely  makes  a  case  authorizing  proceedings  to  acquire  jurisdic- 
tion, and  a  new  attachment  must  issue  upon  the  new  cause  of 
action  set  up  by  the  amendment.^ 

§  37.  There  can  be  no  doubt  that  a  corporation  as  well  as  a 
natural  person  may  sue  by  attachment,  though  the  statute  may 
require  the  affidavit  to  be  made  by  the  plaintiff,  without  mention- 
ing any  other  person  by  whom  it  may  be  made.  The  law  which 
gives  existence  to  the  corporation,  and  which  allows  it  to  sue  and 
be  sued,  necessarily  confers  on  it  the  authority  to  act  through  its 
agents  in  any  sucli  matter.'* 

§  37  a.  Where  several  persons  are  liable  for  the  same  debt,  the 
creditor  may  proceed  by  attachment  against  any  one  or  more  of 
them,  in  relation  to  whom  any  ground  of  attachment  exists,  with- 
out so  proceeding  against  the  others.^ 

1  Roberts  v.  Burke,  6  Alabama,  348 ;  •*  Trenton  Banking  Co.  v.  Haverstick, 
Odom  V.  Sliackletbrd,  44  Ibid.  331.  6  Halsted,  171. 

2  Wright  V.  Snedecor,  46  Alabama,  92.  °  Chittenden  v.  Hobbs,  9  Iowa,  417; 

8  Pope  V.  Hibernia  Ins.  Co.,  24  Ohio  Austin  v.  Burgett,  10  Ibid.  302 ;  over- 
State,  481.  See  Union  C.  M.  Co.  v.  Raht,  ruling  Courier  v.  Cleghorn,  3  G.  Greene, 
16  New  York  Supreme  Ct.,  208;  Watt  v.  523,  and  Ogilvie  v.  Washburn,  4  Ibid. 
Games,  4  Heiskell,  532.  648. 

[31] 


§  40  DEBTORS,    ABSENT,    ABSCONDING,    ETC.       [CHAP.  III. 


CHAPTER    III. 

ABSENT,  ABSCONDING,  CONCEALED,  AND  NON-RESIDENT  DEBT- 
ORS ;  AND  DEBTORS  REMOVING  OR  FRAUDULENTLY  DISPOSING 
OF   THEIR   PROPERTY. 

§  38.  Attachments  are  generally  authorized  against  absent, 
absconding,  concealed,  and  non-resident  debtors  ;  and  we  will 
now  consider  the  adjudications  in  relation  to  these  several  classes 
of  persons. 

§  39.  Absent  Debtors.  It  has  never  been  considered,  so  far  as  I 
have  discovered,  that  mere  temporary  absence  from  one's  place  of 
residence,  accompanied  with  an  intention  to  return,  is  a  sufficient 
cause  for  attachment.  Were  it  so  regarded,  no  limit  could  be  set 
to  the  oppressive  use  of  this  process.  Hence  we  find  that  usually 
the  absence  must  either  be  so  protracted  as  to  amount  to  a  pre- 
vention of  legal  remedy  for  the  collection  of  debts,  or  be  attended 
by  circumstances  indicative  of  a  fraudulent  purpose.  It  is  often, 
therefore,  expressly  provided,  that  to  authorize  an  attachment  on 
account  of  absence,  the  absence  must  be  of  such  character  that 
the  ordinar}^  j^rocess  of  law  cannot  be  served  on  the  debtor.  But 
even  where  no  such  qualification  exists,  no  case  is  to  be  found 
justifying  an  attachment  upon  a  casual  and  temporary  absence 
of  a  debtor.^ 

§  40.  In  Louisiana,  an  attachment  was  taken  out  against  a 
merchant,  who,  during  the  summer,  left  his  store  in  New  Orleans 
in  charge  of  agents,  and  went  to  New  York  on  business,  avowing 
his  intention  to  return  in  the  fall.  It  was  contended  that  any 
kind  of  absence  of  the  debtor  from  the  jurisdictional  limits  of  the 
State  authorized  the  attachment;  but  this  view  was  rejected  by 
the  court.^ 

1  Fuller  V.  Bryan,  20  Penn.  State,  144 ;  2  Watson  v.  Pierpont,  7  Martin,  413. 

Mandel  v.  Peet,  lb  Arkansas,  236. 
[32] 


CHAP.  III.]      DEBTORS,    ABSENT,   ABSCONDING,    ETC.  §  43 

§  41.  In  New  York,  the  court  seemed  to  lay  stress  upon  the 
fact  that  the  debtor  was  out  of  the  reach  of  the  process  of  hiw ; 
and  held,  that  the  remedy  by  attachment  was  available  against  an 
absent  debtor,  whether  absent  permanently  or  temporarily ;  and 
negatived  the  idea  that  one  might  go  openly  to  another  State  or 
country,  and  remain  there  doing  business,  but  intending  to  return 
when  his  convenience  will  permit,  and  by  such  expressed  inten- 
tion prevent  the  resort  to  this  remedy.^ 

§  42.  It  is  by  no  means  easy  to  determine  what  absence  of  a 
resident  will  justify  an  attachment.  The  Supreme  Court  of  ]Mis- 
souri  felt  the  difficulty,  in  construing  a  statute  which  authorized 
an  attachment  where  the  debtor  "  has  absented  himself  from  his 
usual  place  of  abode  in  this  State,  so  that  the  ordinary  process  of 
law  cannot  be  served  upon  him."  "  While,"  said  the  court,  "  it 
is  not  admitted  that  every  casual  and  temporary  absence  of  the 
debtor  from  his  place  of  abode,  which,  during  the  brief  period  of 
his  absence,  may  prevent  the  service  of  a  summons,  is  a  legal 
ground  for  issuing  an  attachment  against  his  property,  it  is  diffi- 
cult to  define  the  character  and  prescribe  the  duration  of  the 
absence  which  shall  justify  the  use  of  this  process.  It  maj^  be 
asserted,  however,  that  where  the  absence  is  such,  that  if  a  sum- 
mons issued  upon  the  day  the  attachment  is  sued  out,  will  be 
served  upon  the  defendant  in  sufficient  time  before  the  return 
day  to  give  the  plaintiff  all  the  rights  which  he  can  have  at  the 
return  term,  the  defendant  has  not  so  absented  himself  as  that 
the  ordinary  process  of  law  cannot  be  served  upon  him."  ^ 

§  43.  In  New  York,  under  a  statute  authorizing  an  attachment 
where  the  defendant  "  has  departed  from  the  State  with  intent  to 
avoid  the  service  of  a  summons,"  a  somewhat  similar  question 
arose,  as  to  the  act  of  departure  which  would  sustain  an  attach- 
ment. Unlike  the  case  in  Missouri  just  referred  to,  the  matter 
of  duration  of  absence  was  not  involved,  but  the  intent  of  the  de- 
parture. The  defendant  openly  and  publicly  went  to  England 
on  business,  making  known  to  his  family  and  his  employees  his 
intention  to  go,  and  expressing  his  expectation  to  return  in  six 
weeks.     But  he  was  on  the  eve  of  bankruptcy  ;  and  the  court 

1  Matter  of  Tliompson,  1  Wendell,  43.     657  ;    Ellington  v.  Moore,    17    Ibid.  424. 

2  Kingsland  v.  Worsliain,  15  Missouri,      See  Fitch  v.  Waite,  5  Conn.  117. 

3  [33] 


§-^4 


DEBTORS,    ABSENT,    ABSCONDING,    ETC.        [CHAP.  III. 


lield.  tliat  if  he  loft  the  State,  though  openly  and  pnhlicly,  and 
intending  to  transact  business  abroad  and  then  return,  bnt  with  a 
view  of  having  the  explosion  of  his  affairs  take  place  in  his  ab- 
sence, and  of  avoiding  the  importunity  and  the  proceedings  of  his 
creditors  ;  the  attachment  could  be  sustained.^ 

§  44.  In  Pennsylvania,  an  attachment  might  issue  "where  tlie 
defendant  had  absconded,  or  departed  from  his  abode,  or  re- 
mained out  of  the  State,  with  design  to  defraud  his  creditors." 
A  creditor  obtained  an  attachment,  on  the  allegation  that  his 
debtor  had  departed  with  that  design.  The  defendant  returned 
before  the  first  day  of  the  term  of  court,  and  resisted  the  attach- 
ment, urging  his  declaration,  before  he  left,  that  the  object  of  his 
journey  was  to  collect  debts,  due  to  him  in  Baltimore  and  else- 
where, his  leaving  his  family  behind,  and  his  subsequent  return, 
as  disproving  the  alleged  intent.     But,  on  the  other  hand,  it  was 


'  Morgan  v.  Avery,  7  Barbour,  656. 
Tlie  opinion  of  the  court  presents  the 
following  summary  of  the  grounds  on 
wliieh  the  attachment  was  sustained : 
"  The  defendant  in  this  case  having  con- 
fessedly departed  the  State,  all  that  is 
required  is  for  the  court  to  be  satisfied 
that  his  departure  was  with  intent  to 
avoid  tlie  service  of  process.  So  that  if 
tiie  defendant  was  on  the  verge  of  bank- 
ruptcy, and  left  the  State,  though  openly 
and  publicly,  and  with  a  view  of  trans- 
acting business  abroad,  with  a  view  of 
having  the  explosion  take  place  in  liis 
absence,  and  of  avoiding  the  importu- 
nity and  the  proceedings  of  his  creditors, 
it  would  seem  that  the  case  would  come 
within  the  statute.  It  is  established  that 
his  departure  was  not  secret,  and  that  he 
went  to  Europe  on  legitimate  business, 
avowing  an  intention  to  return  in  six 
weeks.  He  may  not  have  had  an  inten- 
tion to  defraud  his  creditors,  and  there- 
fore have  left  all  his  property  behind 
him,  except  the  £500  which  was  required 
for  his  foreign  adventure.  Still,  he  may 
have  designed  to  avoid  tlie  service  of  a 
summons  on  behalf  of  his  creditors;  and 
if  he  had  such  an  intention,  the  attach- 
ment can  be  sustained.  I  am  inclined  to 
think  that  such  intention  is  justly  infer- 
able from  his  embarrassed  position ;  from 
his  impaired  credit ;  from  his  attempts  to 
[34] 


borrow  money,  so  immediately  on  the 
eve  of  his  departure ;  from  his  confes- 
sions of  his  inability  to  meet  his  pay- 
ments as  they  became  due;  from  his 
leaving  beliind  him  unpaid  debts  that 
were  past  due  ;  from  the  pains  he  seems 
to  have  taken  not  to  disclose  to  any  of 
his  creditors  his  intention  to  go  abroad, 
though  he  saw  some  of  them  within  a 
day  or  two  of  his  departure,  and  after  lie 
had  taken  his  passage  ;  from  the  tenor  of 
his  conversations  with  them,  wliich  looked 
rather  to  his  continuance  at  home  than 
to  an  absence  abroad  ;  and,  above  all, 
from  the  fact  that  within  twenty-four 
hours  after  he  had  sailed,  his  confidential 
clerk,  whom  he  had  left  in  entire  charge 
of  his  affairs,  called  a  meeting  of  his 
creditors.  It  may  be  that  this  latter 
fact,  as  well  as  the  circumstance  that  his 
clerks,  when  interrogated  as  to  his  wliere- 
abouts,  gave  false  or  equivocal  answers, 
or  professed  ignorance,  may  not  be  justly 
imputable  to  him.  But  I  cannot  over- 
look the  fact  that  the  clerks,  though 
afforded  tiie  opportunity  on  this  motion, 
have  given  no  exj)lanation  of  either  of 
the.<e  matters,  but  leave  the  inference  to 
be  drawn  that  their  behavior  was  in  obe- 
dience to  his  instructions,  and  in  further- 
ance of  his  intention  to  let  his  failure 
happen,  and  the  winding  up  of  his  atlairs 
occur,  in  his  absence." 


CHAP.  III.]      DEBTORS,   ABSENT,   ABSCONDING,    ETC.  §  46 

shown,  that  before  his  departure  he  had  refused  to  be  seen  by  his 
creditors  ;  had  left  the  city  cLandestinely,  after  night,  to  join 
the  Baltimore  stage  the  next  morning  ;  had  borrowed  three  dol- 
lars on  the  road  ;  and  had  ordered  letters  to  be  sent  to  him, 
directed  to  another  name.  On  these  facts  the  court  considered 
that  the  departure  with  a  design  to  defraud  his  creditors  was  not 
disproved,  and  the  attachment  was  sustained.^ 

§  45.  A  similar  case  occurred  in  Louisiana.  An  attachment 
was  obtained  on  the  ground  that  the  defendant  "  had  departed 
from  the  State,  never  to  return."  Afterwards  he  did  return  ;  and 
the  question  was,  whether  his  return  was  conclusive  evidence  of 
his  intention,  when  he  departed,  to  return.  The  defendant 
showed  that  he  had  been  a  resident  of  the  State  for  about  five 
years,  and  carried  on  business  as  a  merchant ;  and  that  during 
that  time  he  had  been  in  the  habit  of  absenting  himself  every 
year  during  the  sickly  season,  leaving  an  agent  or  clerk  to 
attend  to  his  business.  On  the  other  hand,  it  appeared  that 
the  defendant  was  charged  with  having,  with  the  aid  of  one  of 
the  tellers  of  a  bank,  —  the  plaintiff,  —  actually  defrauded  it  of  a 
sum  of  upwards  of  sixty  thousand  dollars.  The  court  admitted 
that,  in  the  absence  of  any  suspicious  circumstances,  the  de- 
fendant's return  would  probably  be  sufficient  to  establish  the 
existence,  when  he  left,  of  an  intention  to  return  ;  but  that  the 
consequences  he  had  to  apprehend  from  the  fraud  he  was  charged 
with  having  committed,  rendered  his  intention  to  avoid  them  by 
flight  80  probable,  that  the  mere  circumstance  of  his  return  did 
not  totally  destroy  the  presumption.^ 

§46.  The  term  "absent  defendants"  received  a  judicial  con- 
struction in  Kentucky,  where  it  was  held  to  include  only  such  as 
were,  at  the  commencement  of  the  suit,  actually  absent  from  the 
State.^     And  in  South  Carolina,  under  a  statute  authorizing  an 

1  Gibson   v.   McLaughlin,    1  Browne,  vision  this  case  arose.     A.  left  his  liouse 

292.  in  Wasliington  county,  some  sixty  miles 

■^  New  Orleans  Canal  and  Banking  Co.  from  Louisville,  on   tiie   18tli  of  Decem- 

V.   Comly,   1    Holiinson    (La.),  2:>1.     See  ber,  18-5',J,  with  stock  for  Mississippi  and 

Eeeves  v.  Comly,  '■]  Ibid.  36:3 ;  Simons  v.  Louisiana.     lie    expected    to    ship     the 

Jacobs,  15  Louisiana  Annual,  425.  stock  on  board  a  steamer  at  Louisville  on 

3  Clark  V.  Arnold,  9  Dana,  305.     In  the  2()th    December,  but  was  unexpect- 

Kentucky,  an    attachment  is   authorized  edly  and  unavoidal)ly  detained  at  Louis- 

where  the  debtor  "  has  been  absent  from  ville  until  the  24th,  when  lie  embarked, 

the  State  four  months."     Under  this  pro-  with  his  stock,  on  a  steamer  bound  down 

[35] 


§  47  DEBTORS,    ABSENT,   ABSCONDING,    ETC.       [CHAP.  III. 

attachment  against  a  debtor,  "being  without  tlie  limits  of  the 
State,"  an  attachment  was  quashed,  because,  when  issued,  the 
defendant  was  in  fact  within  the  State,  though  he  concealed  him- 
self to  avoid  process,  and  though,  by  his  conduct  and  conver- 
sation before  his  disappearance,  he  had  given  good  reason  to 
believe  that  he  had  left  the  State. ^ 

§  47.  An  interesting  case  arose  in  New  York,  which,  though 
not  very  fully  and  definitely  reported  as  to  the  particular  rule 
deducible  from  it,  maj^  nevertheless  be  considered  as  laying  down 
this  doctrine,  —  that  where  a  particular  act,  done  by  a  debtor, 
will  authorize  an  attachment,  if  coupled  with  either  one  of  two 
several  intents,  and  an  attachment  is  obtained  on  an  averment  of 
the  doing  of  the  act  with  one  of  those  intents,  it  will  be  sustained 
by  proof  of  the  other  intent.  The  case  involved  a  construction 
of  that  clause  in  the  Code  of  Procedure  authorizing  an  attach- 
ment where  the  defendant  "  has  departed  from  the  State  with 
intent  to  defraud  his  creditors,  or  to  avoid  the  service  of  a  sum- 
mons." Here,  it  will  be  noticed,  is  one  act,  coupled,  disjunctively, 
with  two  several  intents.  The  act  alone  would  not  authorize  an 
attachment,  but  done  with  either  intent,  would.  An  attachment 
was  obtained  on  an  affidavit  alleging  a  departure,  with  intent  to 
defraud  creditors.  The  defendant  moved  to  set  aside  the  attach- 
ment, and  adduced  evidence  to  disprove  the  alleged  intent.  The 
plaintiff  gave  evidence  to  sustain  the  allegation  of  the  affidavit. 
The  court  held,  that  it  was  not  necessary  to  prove  the  intent  as 
averred,  provided  the  evidence  proved  the  other  intent  to  have 
existed  ;  and  the  attachment  was  sustained,  because  the  other 
intent  was  considered  proved.     It  can  hardly  be  questioned  that 

the  Oliio  River.  He  did  not  return  to  does  consummate  his  purpose,  and  is  ab- 
Kentucky  until  about  tiie  first  of  the  fol-  sent  from  his  iiome,  pursuant  to  such  in- 
lowing  Ma}'.  On  and  after  the  21st  of  tention,  for  the  period  of  four  months,  we 
April,  several  attachments  were  sued  out  tiiink  this  should  be  regarded  as  an  ab- 
against  him.  The  question  was,  whether  sence  from  the  State,  within  the  meaning 
the  four  months'  absence  from  the  State  of  the  code  and  the  intention  of  tiie  Leg- 
had  elapsed  on  the  21st  of  April,  which  islature,  notwithstanding  some  unlooked- 
was  more  than  tiiat  period  after  he  left  for  casualty  may  have  delayed  him  a  few 
liis  house,  but  less  than  that  after  he  em-  days  from  passing  beyond  the  territorial 
barked  at  Louisville.  The  court  consid-  boundary  of  the  State."  Spalding  v. 
ered  the  matter  at  length,  and  announced  Simms,  4  Metcalfe  (Ky.),  285. 
its  conclusion  in  these  words:  "Where  '  Wheeler  v.  Degnan,  2  Nott  &  Mc- 
the  debtor  leaves  his  home  with  the  in-  Cord,  323. 
tention  of  going  out  of   the  State,  and 

[36] 


CHAP.  III.]       DEBTORS,    ABSENT,   ABSCONDING,    ETC.  §  49 

this  is  a  just  and  sound  view  of  the  matter.  The  designated  in- 
tents, though  severally  stated,  are  very  similar  in  cliaracter,  and 
it  might  be  inipracticable  to  state  with  certaint}',  or  to  prove, 
which  intent  was  present  in  the  mind  of  the  defendant  at  the 
time  of  departure.^ 

§  48.  Absconding  Debtors.  An  absconding  debtor  is  one  who, 
with  intent  to  defeat  or  delay  the  demands  of  his  creditors, 
conceals  himself,  or  withdraws  himself  from  his  usual  place  of 
residence  beyond  the  reach  of  their  process ;  ^  and  in  order  to 
constitute  an  absconding,  it  is  not  necessary  that  the  party  should 
depart  from  the  limits  of  the  State  in  which  he  has  resided.^  The 
Supreme  Court  of  Connecticut  remarked  :  "  If  a  person  depart 
from  his  usual  residence,  or  remain  absent  therefrom,  or  conceal 
himself  in  his  house,  so  that  he  cannot  be  served  with  process, 
with  intent  unlawfully  to  delay  or  defraud  his  creditors,  he  is  an 
absconding  debtor.  But  if  he  depart  from  the  State,  or  from  his 
usual  abode,  with  the  intention  of  again  returning,  and  without 
any  fraudulent  design,  he  has  not  absconded,  within  the  intend- 
ment of  the  law."  Therefore,  Avhere  a  debtor  departed  from  L., 
his  usual  place  of  residence,  and  went  to  M.,  in  the  same  State, 
where  he  worked  openly  at  his  trade  for  above  three  months, 
without  taking  any  measures  to  conceal  himself ;  it  was  held, 
that  while  in  this  situation,  he  was  not,  with  respect  to  a  creditor 
in  L.,  an  absconding  debtor,  although  his  friends  and  neighbors 
in  L.  did  not  know  where  he  was,  and  his  absence  was  a  subject 
of  conversation  among  them.^ 

§  49.  Since  concealment,  or  withdrawal  from  one's  place  of 
abode,  with  the  intent  before  mentioned,  is  a  necessary  element 
of  absconding,  it  cannot  be  said  of  one  who  resides  abroad,  and 
comes  thence  into  a  particular  jurisdiction,  and  returns  from  that 
jurisdiction  to  his  domicile,  that,  in  leaving  the  place  which  he 
had  so  visited,  he  was  an  absconding  debtor.^  And  under  a  stat- 
ute authorizing  an  attachment  against  any  person  absconding  or 

1  Morgan  v.  Avery,  7  Barbour,  656.  3  Field  ??.  Adreon,  7  Maryland,  209 ; 

'i  In  Bennett  v.  Avant,  2  Snced,  152,  Stouffer  i;.  Niple,  40  Ibid.  477. 
the   Supreme   Court  of  Tennessee  said:  <  Fitch   v.  Waite,   5  Conn.  117.     See 

"  To  abscond,  in  a  lefial  sense,  means  to  Oliver  v.  Wilson,  29  Georgia,  642. 
hide,  conceal,  or  absent  one's  self  clan-  •■>  Matter  of  Fitzgerald,  2  Caines,  318 ; 

destineiy,  witii  tlie  intent  to  avoid  legal  Matter  of  Scliroeder,  G  Cowen,  003. 
process." 

[37] 


§  52  DEBTORS,    ABSENT,    ABSCONDING,    ETC.       [CHAP.  III. 

concealing  himself,  so  that  the  ordinarv  process  of  law  could  not 
be  served  u]>on  him,  it  was  held,  that  onl^'  residents  of  the  State 
who  absconded  were  within  tlie  scope  of  the  law,  and  that  an  at- 
tachment would  not  lie,  for  that  cause,  against  one  who  had  not 
yet  acquired  a  residence  there. ^ 

In  Alabama,  however,  upon  affidavit  that  the  defendant  "  ab- 
sconds or  secretes  himself  so  that  the  ordinary  process  of  law  can- 
not be  served  upon  him,"  an  attachment  was  sustained,  though 
the  defendant  was  a  resident  of  another  State,  and  was  only  cas- 
ually in  Alabama.^ 

§  50.  An  attachment  was  taken  out  on  affidavit  that  the  de- 
fendant had  departed  the  State  with  the  intent  of  avoiding  arrest 
and  defrauding  liis  creditors.  Upon  its  being  made  to  appear  to 
the  court  that  he  left  his  home  to  go  to  another  place  in  the  same 
State  to  sell  some  property  ;  that,  previous  to  his  departure,  the 
object  of  his  journey  was  communicated  to  his  neighbors,  and  was 
generally  understood  ;  and  that  he  publicly  took  his  departure 
and  returned  within  ten  days,  the  attachment  was  superseded.^ 
And  so,  where  it  appeared  that  the  defendants  had  not  absconded, 
although  from  the  facts  and  circumstances  the  creditor  was  author- 
ized to  say  that  he  believed  they  had  done  so.* 

§  51.  The  act  of  absconding  necessarily  involves  intention  to 
abscond.  Therefore  a  public  and  open  removal,  or  a  departure 
unaccompanied  with  that  intention,  will  not  constitute  an  ab- 
sconding. Much  less  will  such  a  departure,  accompanied  with 
the  expressed  purpose  to  return,  when  there  are  no  suspicious 
circumstances  to  the  contrary.^ 

§  52.  In  showing  the  true  character  of  a  departure,  where  it  is 
alleo-ed  that  it  was  but  for  a  season,  with  the  intention  of  return- 
ing,  evidence  of  common  reputation  in  the  neighborhood  to  that 
effect  is  inadmissible.^  But  in  all  such  cases,  what  the  party  said 
contemporaneously  with  his  departure,  or  immediately  previous 
thereto,  as  to  the  point  of  his  destination,  the  object  he  had  in 

1  Shugart  v.  Orr,  5  Yerger,  192.  ^  Boardinan    v.    Bickford,   2   Aikens, 

■-  Middlebrook  v.  Ames,  5  Stewart  &  345. 
Porter,  158.  ^  Pitts  v.  Burrouglis,  6  Alabama,  733; 

3  Matter  of  Cliipman,  1  Wendell,  66.  Havis  v.  Taylor,  13  Ibid.  324. 

4  Matter  of  Warner,  3  Wendell,  424. 

[38] 


CHAP.  III.]       DEBTORS,    ABSENT,    ABSCONDING,    ETC.  §  54 

view,  and  when  lie  expected  to  return,  is  a  part  of  the  re-s  geatce^ 
and  may  be  received  in  evidence  as  exphmatory  of  his  intentions, 
and,  in  the  absence  of  opposing  proof,  might  repel  the  imputation 
that  he  was  absconding,  or  otherwise  endeavoring  to  evade  tlie 
service  of  ordinary  process.^  And  so  his  acts  and  dechirations  at 
the  time  of,  or  immediately  anterior  to,  the  departure,  are  good 
evidence  to  show  the  intention  to  abscond.^ 

§  53.  As  the  act  of  absconding  is  a  personal  act,  it  can  be 
alleged  only  of  him  who  has  done  it.  "  A  person  can  neither 
abscond,  keep  concealed,  nor  be  absent  by  proxy."  Therefore, 
where  one  member  of  a  firm  absconded,  and  a  creditor  of  the  firm 
sued  ajl  the  partners  in  attachment  as  absconding  debtors,  and 
one  of  the  defendants  pleaded  in  abatement  that  he  had  not  ab- 
sconded, the  plea  was  held  sufficient  to  defeat  the  action.^  But 
where  the  affidavit  was,  that  "  A.  &  Co.,  said  firm  composed  of 
A.  and  certain  parties  unknown  to  deponent,  absconds,"  it  was 
held,  in  Georgia,  that  the  attachment  could  not  be  dismissed  on 
motion.* 

§  53  a.  The  fact  that  a  defendant,  against  whom  an  attach- 
ment has  been  obtained  on  the  ground  of  his  having  absconded, 
afterwards  appears  to  the  action,  does  not  constitute  proof  that 
the  affidavit  alleging  the  absconding  was  false.  He  may  have 
been  an  absconding  debtor  when  the  writ  was  issued,  and  have 
returned  afterwards.^ 

§  54.  Debtors  concealing  themselves.  The  concealment  which 
will  justify  an  attachment  is  but  a  phase  of  absconding,  though 
sometimes  in  attachment  laws  the  two  acts  are  set  forth  sepa- 
rately, so  as  to  indicate  that  tiiey  are  regarded  as  distinct.  More 
usuall}',  however,  they  are  connected  together  thus, —  "absconds 
or  conceals,"  or  "  absconds  or  secretes  ;  "  in  which  case  they  have 
been  regarded,  and  no  doubt  rightly,  as  undistinguishable.  There- 
fore, an  affidavit  stating  that  the  defendant  "absconds  or  conceals 
himself,"  does  not  exhibit  two  separate  grounds  for  attachment, 

1  Pitts  V.  Burrotifflis,  6  Alabama,  733;  2  Ross  v.  Clark,  32  Missouri,  2%. 

Offiitt  v.  Edwards,  9  Robinson  (La.),  90;  »  Leach  v.  Cook,  10  Vermont,  239. 

Havist'.  Taylor,  13  Alabama,  3ii4  ;  Burgess  *  Hiiies  u.  Kimball,  47  Georgia,  587. 

I'.  Clark,  3  In.liana,  250;  Oliver  v.  Wil-  ^  pi,iliips  v.  Orr,  11  Iowa,  283. 

son,  29  Georgia,  042. 

[39] 


§  56  DEBTORS,    ABSENT,    ABSCONDING,   ETC.       [CHAP.  III. 

which,  coupled  by  the  disjunctive  "  or,"  would  be  vicious,  but 
one  only  ;  for  the  terms  are  of  equivalent  meaning.^ 

§  54  a.  An  attachment  was  obtained  on  an  affidavit  that  the 
defendant  "  so  conceals  himself  that  process  canoiot  be  served 
upon  him."  The  facts  were,  that  the  defendant  was  called  upon 
in  the  evening  for  payment  of  the  demand,  and  notified  that  un- 
less he  made  it,  suit  would  be  instituted.  During  the  night,  or 
the  next  morning,  he  sold  out  his  entire  stock  of  goods,  without 
taking  an  invoice,  and  in  the  morning  left,  and  was  absent  for 
two  months.  When  called  upon,  the  evening  before,  he  had 
promised  to  call  and  see  plaintiff's  attorney  in  the  morning,  but 
left  without  doing  so,  or  giving  any  notice  that  he  designed  to 
leave.  Upon  these  facts  an  instruction  to  the  jury  in  the  follow- 
ing terms  was  held  correct :  "  It  is  concealment  to  avoid  service 
of  process,  no  matter  whether  for  an  hour,  a  day,  or  a  week  ; 
whether  with  a  view  to  defraud  creditors,  or  merely  to  have  time 
to  make  a  disposition,  lawful  or  otherwise,  of  his  property,  before 
his  creditors  got  at  him  ;  it  is  placing  himself  designedly  so  that 
his  creditors  cannot  reach  him  with  process ;  which  constitutes 
concealment  under  the  statute."  ^  And  if  a  man  leave  a  place, 
requesting  false  information  to  be  given  of  his  movements,  he 
conceals  himself.^ 

§  55.  Where  an  attachment  was  issued,  on  affidavit  that  "  the 
defendant  was  secreting  himself,  so  that  the  ordinary  process  of 
law  could  not  be  served,"  and  it  was  shown  on  his  behalf,  that 
he  was  temporarily  absent  from  his  place  of  abode,  on  a  visit  to 
his  son-in-law  in  another  county  of  the  same  State  ;  that  the 
plaintiff  knew  the  defendant's  intention  to  make  said  visit  long 
before  he  started,  and  tliat  his  intention  was  also  publicly  and 
notoriously  known  ;  it  was  held,  to  be  unnecessary  for  the  de- 
fendant to  show  that  he  communicated  to  the  plaintiff'  his  inten- 
tion to  make  the  visit ;  and  that  it  was  sufficient  if  it  were 
known  in  the  neighborhood,  and  could  have  been  ascertained  on 
inquiry.* 

§  56.  Concealment,  to  authorize  an  attachment,  must  be  with 

i  Goss  V.  Gowing,  5  Ricliardson,  477  ;  ^  North  v.  McDonald,  1  Bissell,  57. 

Conrad  v.  McGee,  9  Yer<Ter,  428.  *  Walcott  v.   Hendrick,  6  Texas,  406. 

•^  Young  V.  Nelson,  25  Illinois,  505.  See  Boggs  v.  Bindskoff,  23  Illinois,  GG. 
[40] 


CHAP.  III.]      DEBTORS,   ABSENT,    ABSCONDING,   ETC.  §  59  « 

intent  to  defeat  or  delay  the  claims  of  creditors,  by  avoiding 
service  of  process.  Therefore,  one  who  conceals  himself  for  the 
purpose  of  avoiding  a  criminal  prosecution  is  not  within  the 
purview  of  the  law.^ 

§  57.  Non-resident  Debtors.  Mere  absence  from  a  particular 
jurisdiction  is  not  a  convertible  term  with  non-residence.^  As 
we  shall  presently  see,  absence  from  one's  domicile  may  be  so 
prolonged  as  to  justify  his  being  subjected  to  attachment  as  a 
non-resident ;  but  where  a  statute  authorizes  an  attachment  on 
the  ground  of  a  debtor's  non-residence,  he  cannot  be  proceeded 
against  on  an  affidavit  alleging  that  he  absconds  and  is  not  within 
the  State.^ 

§  58.  In  determining  whether  a  debtor  is  a  resident  of  a  par- 
ticular State,  the  question  as  to  his  domicile  is  not  necessarily 
always  involved  ;  for  he  may  have  a  residence  which  is  not  in  law 
his  domicile.  Domicile  includes  residence,  with  an  intention  to 
remain;  while  no  length  of  residence,  without  the  intention  of 
remaining,  constitutes  domicile.* 

§  59.  A  residevit  and  an  inhahitcmt  mean  the  same  thing.  A 
person  resident  is  defined  to  be  one  "dwelling  or  having  his 
abode  in  any  place ; "  an  inhabitant,  "  one  that  resides  in  a 
place."  ^  These  terms  will  therefore  be  used  synonymously,  as 
they  may  occur  in  the  cases  cited. 

§  59  a.  In  the  attachment  law  of  at  least  one  State, — Mary- 
land,—  the  word  citizen  is  used  in  reference  to  persons  liable  to 
be  proceeded  against  by  attachment ;  and  the  meaning  of  that 
word,  in  that  connection,  became  the  subject  of  discussion  there  ; 
and  the  court  held,  that  a  party  may  not  be  a  citizen  for  political 
purposes,  and  yet  be  one  for  commercial  or  business  purposes  ; 
and  considered  that  one  who  was  residing  and  doing  business  in 
that  State  was,  in  contemplation  of  the  attachment  laws,  a  citizen 
of  that  State,  though  an  unnaturalized  foreigner,  and  entitled  to 

1  Evans  v.  Saul,  8  Martin,  n.  s.  247.  Mitchell  v.   United   States,  21   Wallace, 

'■^  Ciiariton    County    v.    Moberly,    59  350. 
Missouri.  288.  ^  Roosevelt  v.  Kellog-;,  20  Jolins.  208  ; 

»  Croxall  r.  Ilutcliinfis,  7  Halsted,  84.  Matter  of   Wrigley,  4  Wendell,  002  ;   8 

4  Matter    of    Thompson,    1    Wendell,  Ihid.    134 ;    2    Kent's    Com.   431,    note ; 

43;  Foster   v.  Hall,  4   Humphreys,  346;  Wiltse  v.  Stearns,  13  Iowa,  282. 


§  61  DEBTORS,    ABSENT,    ABSCONDING^    ETC.       [CHAP.  III. 

no  political  privileges.  This  was,  in  effect,  to  make  no  distinc- 
tion in  meaning  between  the  words  citizen^  resident,  and  inhabi- 
tant.^ 

§  60.  Where  a  subject  of  a  foreign  government,  who  had  been 
trading  in  tlie  West  Indies,  came  to  this  country  on  a  commercial 
adventure  without  any  idea  of  settling  here,  or  of  not  returning 
lience  as  soon  as  his  business  was  settled,  he  was  held  to  be  a  non- 
resident, and  liable  as  such  to  an  attachment.^  So  a  person 
coming  occasionally  to  a  place  in  the  course  of  trade,  is  not  an 
inhabitant  of  that  place.^  Nor  can  one  who  removed  from 
another  State  clandestinely,  and  conceals  himself  in  that  to 
which  he  fled,  be  regai'ded  as  a  resident  of  the  latter.*  So,  where 
one  who  had  been  a  resident  of  New  York,  broke  up  his  resi- 
dence and  sailed  for  England  sine  animo  revertendi,  but  after 
staying  there  three  weeks  returned  to  New  York,  on  his  way  to 
Canada,  and  took  lodgings  in  Brooklyn  to  await  the  arrival  of 
his  goods,  and  remained  there  a  few  weeks,  and  then  passed  over 
to  New  York,  and  took  lodgings  there  for  a  few  days ;  it  was 
held,  that  these  circumstances  afforded  no  foundation  for  a  pre- 
tence that  he  was  a  resident  or  inhabitant  of  New  York.^ 

§  61.  But  one  who  goes  to  a  place  with  the  intention  to  reside 
there,  becomes  a  resident  of  that  place,  and  acquires  a  domicile 
there,  whether  the  residence  has  been  long  or  short.^  But  this 
animus  manendi  must  certainly  exist,  otherwise  no  domicile  is 
acquired.  Therefore,  where  one  had  abandoned  his  residence  in 
Indiana,  and  went  thence  with  his  family  to  New  York,  where 
he  lived  with  a  friend,  while  he  was  looking  out  for  an  oppor- 
tunity of  again  getting  into  business  ;  and  whether  he  should 
finally  settle  in  that  State  or  elsewhere,  was  undetermined  ;  it 
was  considered  tliat  he  might  be  proceeded  against  by  attach- 
ment, as  a  non-resident  of  New  York.''  But  where  an  attachment 
was  taken  out  against  a  party  on  the  ground  of  non-residence, 

1  Field   V.  Adreon,  7  Maryland,  209;  *  Shugart  f.  Orr,  5  Yerger,  192. 

Risewick  v.  Davis,  19  Ibid.  82.  ^  Matter  of  Wrigley,  8  Wemleli,  134 ; 

-  Matter  of  Fitzgerald,  2  Caines,  318.  Remarks  of  Cliancellor  Walwoktu,  s.  c. 

See    Greene   v.   Beckwilh,    38   Missouri,  4  Wendell,  602. 
384 ;  Leonard   v.  Stout,  36   New  Jersey  *»  2  Kent's  Com.  431,  note. 

Law,  370.  "f  Burrows  v.  Miller,  4  Howard  Pract. 

3  Barnet's  Case,  1  Dallas,  152;  Board-  349.     See  Clark  v.  Pratt,    18  Louisiana 

man  v.  Bickford,  2  Aikens,  345.  Annual,  102. 
[42] 


CHAP,  in.]      DEBTORS,    ABSENT,   ABSCONDING,   ETC. 


62 


the  affidavit  alleging  he  had  but  just  emigrated  to  this  country, 
and  had  no  permanent  residence,  except  his  staying  as  a  boarder 
and  lodger  with  the  plaintiff;  it  was  held,  that  he  was  not  a  non- 
resident, having  left  for  ever  his  native  land,  and  having  no 
determination  to  reside  elsewhere  than  where  he  was  at  the  time 
the  attachment  was  obtained.^ 

§  62.  On  the  question  of  residence,  the  mode  of  living  is  not 
material,  whether  on  rent,  at  lodgings,  or  in  the  house  of  a  friend. 
The  apparent  or  avowed  intention  of  constant  residence,  not  the 
manner  of  it,  constitutes  the  domicile.  In  inquiries  of  this  sort, 
minute  circumstances  are  taken  into  consideration  :  the  immediate 
employment  of  the  party,  his  general  pursuits  and  habits  of  life, 
his  friends  and  connections,  are  circumstances  which,  thrown 
into  the  scale,  may  give  it  a  decisive  preponderance.^  Therefore, 
where  a  man  came  from  another  place  to  reside  in  Pennsylvania, 
introduced  his  family  there,  took  a  house,  engaged  in  trade,  and 
contracted  debts,  he  was  held  to  be  an  inhabitant,  so  as  to  be  the 
subject  of  domestic,  and  not  of  foreign  attachment.^  So,  where 
an  unmarried  man  came  to  Philadelphia,  took  lodgings,  and 
rented  a  store  in  the  city,  where  he  carried  on  trade,  and  fre- 
quently declared  his  intention  of  taking  up  a  permanent  residence 
in  the  city,  he  was  considered  to  be  an  inhabitant.*  So,  where  a 
resident  of  the  State  of  New  York  went  thence  to  Illinois,  and 
purchased  there  a  farm,  which  he  lived  upon  and  cultivated  three 
years,  and  while  living  thereon  voted  in  Illinois,  and  spoke  of 
that  State  as  his  residence,  and  declared  his  intention  to  make 
the  farm  his  permanent  home,  and  said  that  his  wife  —  who  had 
all  the  time  remained  in  New  York  —  would  join  him  on  the  de- 
cease of  her  mother,  who  was  too  old  to  be  removed ;  he  was 
held  to  be  a  resident  of  Illinois.^  And  while  a  man  thus  remains, 
he  is  to  be  regarded  as  a  resident  of  the  place,  though  he  avow 
an  intention  to  withdraw  from  it  ;^  and  though  he  go  away,  stat- 
ing that  he  intends  to  go  to  another  State,  but  is  absent  only  a 

1  Heidenbach  v.  Schland,  10  Howard  *  Kennedy  r.  Baillie,  3  Yeates,  55. 
Tract.  477.     See  Brown  v.  Ashbough,  40  *  Wells  i-.  Tlie  People,  44  Illinois,  40. 
Ibid.  260.  ^  Lyle    v.    Foreman,    1    Dallas,   480  ; 

2  Guier   v.   O'Daniel,  1    Binney,  349,  Bainbridge   v.  Alderson.  2   Browne,  51  ; 
note.  Smith  v.  Story,  1  Humplireys,  420  ;  Strat- 

3  Barnet's  Case,  1  Dallas,  152  ;  Tliur-  ton  v.  Brigham,  2  Sneed,  420. 
neyssen  v.  Vouthier,  1  Miles,  422. 

[43] 


§  63  DEBTORS,   ABSENT,   ABSCONDING,   ETC.      [CHAP.  III. 

short  time,  and  does  not  leave  the  State  in  which  he  has  resided. ^ 
And  so,  though  he  go  into  another  State,  to  seek  another  resi- 
dence. In  sucli  case  he  does  not  become  a  non-resident  until  the 
fact  and  intention  unite  in  another  abode  elsewhere.^ 

§  63.  It  follows  from  these  views  of  what  constitutes  a  resident 
or  inhabitant,  that  change  of  abode,  sine  animo  revertendi,  makes 
one  immediately  a  non-resident  of  the  place  from  which  he  de- 
parts.3  Therefore,  where  a  person  resided  and  carried  on  busi- 
ness in  New  York  for  several  years,  and  becoming  embarrassed 
and  unable  to  pay  his  debts,  determined  to  leave  this  country  for 
England,  and  did  actually  leave,  taking  with  him  his  effects, 
without  any  intention  of  returning,  he  was  held  to  be  no  longer 
an  inhabitant  of  New  York.*  So,  where  one  had  acquired  a  resi- 
dence in  Philadelphia,  and  sailed  thence  to  the  West  Indies  as 
supercargo  of  a  vessel,  taking  with  him  four-fifths  of  his  prop- 
erty, having  previously  executed  an  assignment  of  the  rest  of  it 
for  the  benefit  of  creditors ;  and  engaged  in  trade  in  the  West 
Indies,  where  he  was  seen  by  persons  who  understood  from  him 
that  he  did  not  intend  to  return  soon,  and  his  letters  had  been 
for  nine  months  silent  as  to  his  return  ;  he  was  considered  to  be 
no  longer  an  inhabitant  of  the  State,  and  his  property  was  sub- 
jected to  a  foreign  attachment,  though  when  he  went  away  he 
expressed  his  purpose  to  return  in  twelve  or  eighteen  months.^ 
So,  where  one  resided  a  few  months  in  Philadelphia,  and  then 
proceeded  to  Virginia,  whence  he  sailed  for  England,  in  conse- 
quence of  receiving  intelligence  of  the  misconduct  of  a  partner 
there,  but  declaring  his  intention  to  return  in  the  ensuing  spring  ; 
it  was  considered  that  he  had  ceased  to  be  an  inhabitant  of 
Pennsylvania,  and  was  subject  to  foreign  attachment.^  So, 
where  a  resident  of  Kentucky  stated  that  he  had  purchased 
land  in  Missouri,  and  intended  to  go  there  in  the  fall  to  live  ;  and 
persuaded  an  acquaintance  to  go  with  him  and  settle  in  his 
neighborhood ;  and  did  go  away  in  the  fall,  and  was  absent  when 

1  Shipman  v.  Woodbury,  2  Miles,  67 ;  ^  Moore  v.  Holt,  10  Grattan,  284. 
Wheeler  v.  Degnan,  2  Nott  &  McCord,          *  Matter  of  Wrigley,  4  Wendell,  602 ; 
323.  8  Ibid.  134. 

2  Pfoutz  V.  Comford,  36  Penn.  State,  ^  Nailor  v.  French,  4  Yeates,  241. 
420  ;  Reed's  Appeal,  71  Ibid.  378;  Smith  «  Taylor  v.  Knox,  1  Dallas,  158. 
V.  Dalton,  1  Cincinnati  Sup.  Ct.  Reporter, 

150. 

[44] 


CHAP.  III.]       DEBTORS,   ABSENT,    ABSCONDING,   ETC.  §  64 

the  suit  was  brought ;  it  was  held  sufficient  to  justify  proceeding 
against  him  by  attachment  as  a  non-resident,  though  he  returned 
a  month  after  the  suit  was  brought.^  So,  where  one  left  Indiana 
under  false  pretexts,  leaving  his  family  ignorant  of  the  cause  of 
his  flight,  and  the  place  of  his  destination  ;  and  was  absent  for 
more  than  two  months,  when  a  suit  by  attachment  was  brought 
against  him  as  a  non-resident ;  and  was  gone  about  a  year  al- 
together, and  during  that  time  was  in  Nevada;  and  there  was 
nothing  showing  an  intention  to  return,  but  circumstances  au- 
thorizing the  contrary  inference  ;  it  was  held,  that  it  might  be 
inferred  that  he  had  left  Indiana  and  located  in  Nevada,  with  the 
intention  of  making  his  home  in  that  Territory .^  So,  where  one 
went  from  Philadelphia  to  the  West,  with  a  view  to  select  a 
place  for  future  residence,  and  took  a  farm  in  Illinois,  and  sent 
for  his  wife  and  family,  he  was  held  to  have  changed  his  resi- 
dence, though  his  family  temporarily  remained  behind.^ 

§  63  a.  As  a  change  of  abode,  sine  ammo  revertendi,  is  neces- 
sary to  make  one  a  non-resident  of  the  place  from  which  he 
departs,  it  follows  that  the  enlistment  of  one  in  the  volunteer 
military  service  of  the  United  States,  or  his  being  drafted  into  it, 
and  his  departure  from  the  place  of  his  domicile  to  a  point  out  of 
the  State,  in  the  performance  of  military  duty,  with  an  intention 
to  return  at  the  expiration  of  his  term  of  service  to  his  former 
abode,  cannot  have  the  effect  of  making  him  a  non-resident.'* 

§  64.  When  an  individual  departs  from  his  place  of  abode  in 
one  State,  with  the  intention  of  taking  up  his  residence  in  an- 
other State,  at  what  point  of  time  is  he  to  be  regarded  as  a  non- 
resident of  the  State  in  which  he  has  been  domiciled  ?  Can  he 
be  so  considered  before  he  passes  the  boundary  of  that  State  ? 
This  question  arose  in  Virginia,  under  a  statute  authorizing  an 
attachment  "  against  a  person  who  is  not  a  resident  of  this 
State."  The  defendant  left  Winchester  at  nine  o'clock,  A.M., 
and  went  by  railroad  to  Harper's  Ferry,  where  he  remained  un- 
til between  half-past  two  and  three  o'clock,  p.m.,  when  he  took 
the  cars  for  Baltimore,  intending  to  go  directly  on  to  Phila- 
delphia, where  he  purposed  residing.     Between  ten  and  eleven 

'  Farrow  v.  Barker,  3  B.  Monroe,  217.  *  Tibliitts    v.   Townsend,    16    Abbott 

2  McCollem  v.  White,  23  iiuliana,  43.       Pract.  221. 

3  Keed  v.  Ketch,  1  I'liiladelphia,  105. 

[45] 


§  65  DEBTORS,    ABSENT,    ABSCONDING,   ETC.       [CHAP.  III. 

o'clock,  A.M.,  of  that  day,  an  attachment  was  taken  out  and  im- 
mediately executed.  The  point  was  raised  whether,  at  that  time, 
the  defendant,  being  still  within  the  limits  of  the  State,  had 
become  a  non-resident ;  and  the  Court  of  Appeals  held  that  he 
had.^  But  a  mere  purpose  to  change  residence,  though  evidenced 
by  acts  of  removal  of  the  party's  property,  will  not  make  liim  a 
non-resident  of  the  State  from  which  he  purposes  to  depart,  un- 
til he  shall  have  begun,  at  least,  the  removal  of  his  person.  Thus, 
in  New  Jersey,  where  the  defendant  had  moved  his  goods  and 
chattels  out  of  the  house  he  had  been  occupying  to  a  canal-boat, 
with  the  intention  of  taking  them  and  his  family  to  another 
State  ;  and  while  some  of  the  goods  were  on  the  boat,  some  on 
the  wharf,  read}^  to  be  put  on  board,  and  others  on  the  premises, 
and  in  transitu  from  the  premises  to  the  boat,  an  attacinnent  was 
taken  out  on  the  ground  that  he  was  "  not  resident  in  this  State 
at  this  time  ; "  the  court  held,  that  at  most  there  was  but  an  in- 
tention to  remove,  wliich,  without  the  fact  of  an  actual  removal, 
did  not  make  the  defendant  a  non-resident.^ 

§  65.  The  Court  of  Appeals  of  New  York  recognized  the  com- 
patibility of  domicile  in  that  State  with  actual  non-residence,  so  as 
to  authorize  the  party  to  be  proceeded  against  by  attachment  as  a 
non-resident,  even  when  the  intention  to  return  existed,  and  there 
was  no  abandonment  of  domicile.  This  was  only  an  extended 
application  of  the  doctrine  held  in  that  State,  in  the  case  above 
cited,^  as  applied  to  absent  debtors.  In  the  case  now  referred  to, 
the  defendant  was  proceeded  against  as  a  no7i-resident.  On  his 
behalf  it  was  offered  to  be  proved,  that  he  was  not  a  non-resident 
of  New  York  when  the  attacliment  was  taken  out,  but  a  resident 
thereof  ;  and  that  he  had  been  absent  about  three  years,  attending 
to  a  lawsuit  at  New  Orleans,  and  returned  thence  to  New  York 
after  the  attachment  was  obtained.  This  evidence  was  excluded 
by  the  judge,  because  the  offer  itself  showed  the  defendant  to  be  a 
non-resident  at  the  time  the  attachment  issued  ;  and  the  Court 
of  Appeals  sustained  this  ruling,  and  held  that  the  defendant  was 

'  Clark    V.   Ward,    12    Grattan,    440.  sidered  a  non-resident  of  Kansas  until  he 

See  Spalding  r.  Simms,  4  Metcalfe  (Ky.),  actually    left   its  territory.     Ballinger   v. 

285.     In  Kansas  it  was  lield,  contrary  to  Lantier,  15  Kansas,  008. 
the  Virginia  doctrine  stated  in  the  text,  2  Kugler  v.  Shreve,  4  Dutclier,  129. 

that  the  defendant,  though  on  his  way  to  '  Matter  of  Thompson,  1  Wendell,  45. 

reside  in  anijther  State,  could  not  be  con- 
[4(5] 


CHAP.  III.]      DEBTORS,    ABSENT,    ABSCONDING,    ETC. 


66 


a  non-resident  when  the  attachment  issued,  although  domiciled 
in  New  York.^  The  doctrine  of  this  case  was,  substantially, 
adopted  in  New  Jersey,^  Maryland,^  North  Carolina,'*  Mississippi,^ 
and  Wisconsin.^ 

§  65  a.  The  legal  residence  of  a  wife  follows  that  of  her  hus- 
band, though  she  may  ^lot  actually  reside  at  the  place  of  his 
domicile  ;  and  hence  she  may,  conjointly  with  her  husband,  be 
proceeded  against  by  attachment,  as  a  non-resident  of  the  State 
in  which  she  actually  resides,  if  he  be  a  resident  of  another  State. 
This  was  held  in  a  case  where  the  wife  was,  before  marriage,  a 
resident  of  New  Jersey,  and  was  married  there  to  a  resident  of 
New  York.  After  the  marriage  they  went  to  Europe,  and  during 
their  absence  an  attachment  was  sued  out  against  them  as  non- 
residents, for  a  debt  contracted  by  the  wife  duyn  sola.  It  was 
her  intention,  when  she  went  abroad,  to  return  to  her  place  of 
residence  in  New  Jersey  and  continue  her  residence  there  for  a 
time,  and  on  her  return  she  carried  out  that  intention  ;  her  hus- 
band visiting  her  on  Saturdays,  coming,  for  that  purpose,  from 
New  York,  where  he  did  business,  and  returning  the  next  week 
to  New  York.  She  was  held  to  be  a  non-resident  of  New  Jersey, 
so  as  to  authorize  the  attachment.^ 

§  <d^.  In  connection  with  the  non-residence  of  one  member  of  a 
firm,  the  question  arises,  whether,  on  a  firm  debt,  an  attachment 
against  him  may  be  levied  on  the  partnership  effects.  This  de- 
pends upon  whether,  in  the  State  in  which  the  firm  exists,  a 
joint  liability  is  declared  by  statute  to  be  joint  and  several.  If  so, 
the   non-resident  partner  may  be  sued  by  attachment,  and  the 

1  Haggart  *;.  Morgan,  1  Selden,  422 ;  it  was  decided  that  he  could  be  pro- 
Frost  V.  Brisbin,  19  Wendell,  11 ;  Bur-  ceeded  against  as  a  non-resident  of  New 
rill  V.  Jewett,  2  Robertson,  701.  Sed  Jersey  whenever  he  was  absent  from  that 
cotttra,   Brundrcd  v.  Del  Hoyo,  Spencer,  State. 

328.     See  remarks  of  Roosevelt,  J.,  in  »  Kisewick  v.  Davis,  19  Maryland,  82; 

Hurlbut  V.  Seeley,  11  Howard  Pract.  507.  Dorsey  v.  Kyle,  30  Ibid.  512. 

2  Weber  v.  Weitling,  18  New  Jersey  <  Wheeler  v.  Cobb,  75  North  Carolina, 
Eq.,  441.     In  Stout  v.  Leonard,  37  New  21. 

Jersey  Law,  402,  it  was  held  that  a  man  ^  Alston  v.  Newcomer,  42  Mississippi, 

can  have   but  one  domicile  for  one  and  186. 

the  same  purpose  at  any  onetime,  though  «  Wolf  v.   McGavock,  23    Wisconsin, 

he   may  have   numerous   places   of  resi-  516. 

dence.    Therefore,  wiiere  one  had  a  place  "^  Hackettstown   Bank   v.    Mitchell,   4 

of  residence  in  New  Jersey  for  the  sum-  Dutclier,  516. 


mer,  and  one  in  New  York  for  the  winter, 


[47] 


§  69  DEBTORS,    ABSENT,   ABSCONDING,    ETC.       [CHAP.  III. 

attachment  may  be  levied  on  partnership  effects  ;  ^  but  if  the  rule 
of  the  common  law,  that  partners  must  be  sued  jointly,  be  unal- 
tered, it  cannot.^ 

§  07.  Tlie  remedy  by  attachment  against  a  non-resident  is  not 
annulled  or  suspended  by  his  accidental  or  transient  presence 
within  the  State  ;^  nor  by  his  becoming  a  resident  of  the  State 
after  levy  of  the  attachment  ;*  nor  by  the  fact  that  he  has  a  com- 
mercial domicile  —  that  is,  is  engaged  in  business  —  therein,  when 
his  personal  domicile  is  in  another  State.^  Therefore  where  a 
defendant  had  all  his  business  and  property  in  the  State  of  New 
York,  and  all  his  business  capital  and  his  bank  account  in  the 
city  of  New  York,  where  he  was  engaged  in  business,  and  where 
he  spent  on  an  average  eight  hours  of  every  business  day  ;  but 
for  reasons  of  convenience  and  economy,  maintained  his  family  in 
Jersey  City,  in  the  State  of  New  Jersey,  and  spent  with  them 
there  his  nights  and  Sundays;  it  was  held,  that  he  was  not  a  res- 
ident of  the  State  of  New  York.^ 

§  68.  Debtors  removing  their  Property.  In  many  of  the  States 
statutory  provisions  exist,  authorizing  attachments  to  issue,  where 
a  debtor  is  about  to  remove  his  property  out  of  the  State,  or  to 
dispose  of  it  so  as  to  defraud  his  creditors.  We  will  give  atten- 
tion to  the  cases  which  have  arisen  under  provisions  of  this  de- 
scription. 

§  69.  In  Louisiana,  under  a  statute  authorizing  an  attachment 
where  "  the  debtor  is  about  to  remove  his  property  out  of  the 
State  before  the  debt  becomes  due,"  it  was  decided  that  the  stat- 
ute must  be  understood  to  apply  to  property  which  the  creditor 
might  have  supposed  would  not  be  carried  out  of  the  State,  and 
to  which  he  might  have  looked  for  his  security  at  the  time  of 

1  Greene  v.  Pyne,  1  Alabama,  235 ;  souri,  384 ;  Malone  v.  Lindley,  1  Phila- 
Conklin  v.  Harris,  5  Ibid.  213.  delpliia,  l'.i2 ;  Wallace  v.  Castle,  68  New 

2  Wiley  V.  Sledge,  8  Georgia,  632.  York,  370. 

3  Bryan  v.  Dunseth,  1  Martin,  n.  s.  ^  Barry  v.  Bockover,  6  Abbott  Pract. 
412;  Jackson  v.  Perry,  13  B.  Monroe,  374.  See  Potter  v.  Kitchen,  Ibid.  374, 
231  ;  Burcalow  v.  Trump,  1  Houston,  note ;  Lee  v.  Stanley,  9  Howard  Pract. 
3(53;  Greene  v.  Beckwitii,  38  Missouri,  272;  Hougiiton  v.  Ault,  16  Ibid.  77; 
384 ;  Perrine  ads.  Evans,  35  New  Jersey  Chaine  v.  Wilson,  Ibid.  552 ;  8  Abbott 
Law,  221.  Pract.  78;  1   Boswortli,  673;  Murphy  v. 

*  Larimer  w.  Kelly,  10  Kansas,  298.  Baldwin,    41    Howard    Pract.    270;     11 

s  Rayne  v.  Taylor,  10  Louisiana  An-     Abbott  Pract.  n.  s.  407. 
nual,   726 ;  Greene  v.  Beckwith,  38  Mis- 

[48] 


CHAP.  ITI.]      DEBTORS,    ABSENT,   ABSCONDING,   ETC.  §  70 

contracting,  or  since ;  but  that  it  would  be  unreasonable  to  ex- 
tend it  to  a  species  of  property  which,  from  its  nature  and  desti- 
nation, must  necessarily  be  taken  out  of  the  State,  and  which 
the  creditor  could  not  have  believed  would  remain  continually 
within  its  limits.  Therefore,  where  a  debtor  was  the  owner  of  a 
steamboat,  which  he  had  purchased  from  the  plaintiff,  and  for 
part  of  the  purchase-money  had  given  notes  to  the  plaintiff,  se- 
cured by  a  mortgage  on  the  boat,  which  notes  were  not  yet  due  ; 
and  after  the  giving  of  the  notes,  he  had  been  running  the  boat 
regularly  in  a  particular  trade,  which  necessarily  took  her  out  of 
the  State  ;  it  was  considered,  that  the  fact  of  the  defendant  being 
about  to  take  her  away  on  one  of  her  regular  trips^  without  any 
fraud,  or  intention  to  defraud,  being  alleged,  was  not  sufficient  to 
justify  an  attachment,  on  the  statutory  ground  above  cited. ^ 
And  so  in  a  similar  case  in  Wisconsin.  The  affidavit  alleged 
that  "  the  defendant  is  about  fraudulently  to  remove,  convey,  or 
dispose  of  his  property,  so  as  to  hinder  the  plaintiff  from  collect- 
ing his  said  debt ;  "  and  added,  as  "  reasons  and  circumstances 
upon  which  the  belief  of  the  above  facts  is  founded,  that  the  de- 
fendant is  now  on  his  way  down  the  Wisconsin  river  with  a  large 
raft  of  pine  lumber,  bound  for  the  southern  market,  and  is  now 
removing  the  same  out  of  this  Territory ;  and  that  said  lumber 
is  all  the  property  said  defendant  owns  in  said  Territory,  or  else- 
where to  the  knowledge  of  affiant."  The  affidavit  was  held  bad  ; 
and  the  court  said :  "  When  the  fact  '  that  a  defendant  is  about 
fraudulently  to  remove,  convey,  or  dispose  of  his  property  to  hin- 
der or  delay  his  creditors,'  is  a  ground  for  proceeding  in  attach- 
ment, the  facts  stated  to  sustain  the  position  should  show  that 
the  defendant  is  so  acting  with  his  property,  out  of  its  ordinary 
and  necessary  use,  as  to  produce  the  reasonable  conviction  that  a 
fraudulent  disposition  thereof  is  intended.  To  state  in  the  affi- 
davit circumstances  showing  that  defendant  is  using  his  property 
in  the  only  way  in  which  it  could  be  of  any  value  whatever,  and 
strictly  conforming  to  the  usages  and  customs  observed  in  that 
line  of  business  by  persons  so  engaged,  furnishes  no  ground  what- 
ever to  authorize  the  writ  of  attachment."  ^ 

§  70.  In  Illinois,  where  the  statute  authorized  an  attachment 

I  Russell  V.  Wilson,  18  Louisiana,  367.  -  Hurd  v.  Jarvis,  1  Pinney,  475. 

See  Montgomery  v.  Tilley,  1  B.  Monroe, 
155. 

4  [49] 


§  70  a  DEBTORS,  ABSENT,  ABSCONDTNG,  ETC.   [CHAP.  III. 

when  the  debtor  "  is  about  to  remove  his  property  from  this  State 
to  the  injury  of  such  creditor,"  an  attachment  was  obtained  on 
that  ground  against  two  debtors,  and  levied  on  a  quantity  of  pig- 
iron,  which  was  all  the  personal  property  owned  by  the  defend- 
ants in  the  county,  at  the  time  the  writ  issued.  The  defendants 
filed  a  plea  in  abatement,  traversing  the  allegation  of  the  affidavit. 
On  the  trial  of  this  plea,  they  offered  to  prove  that  one  of  them 
owned  a  large  amount  of  personal  property  in  the  State,  free  from 
any  incumbrance,  and  more  than  sufficient  to  discharge  the  plain- 
tiff's demand.  The  court  excluded  this  evidence  ;  but  the  Supreme 
Court  held  this  exclusion  to  be  erroneous.  They  considered  that, 
not  only  must  there  be  a  removal  of  the  property  of  the  defend- 
ants, but  it  must  be  to  the  injury  of  the  plaintiff ;  and  that  the 
proof  offered  was  competent,  as  tending  to  show  that  the  removal 
would  not  oj)erate  to  the  plaintiff's  injury.^ 

§  70  a.  In  Mississippi,  an  attachment  was  obtained  on  the  ground 
that  the  defendant  was  "  about  to  remove  his  property  out  of  this 
State."  The  defendant  pleaded  in  abatement,  denying  the  alle- 
gation of  the  affidavit.  On  the  trial  under  this  plea,  it  appeared 
that  the  defendant,  in  pursuance  of  a  previously  expressed  pur- 
pose, had  removed  a  part  of  his  property  to  Louisiana,  but 
that  at  the  time  of  the  attachment  he  had,  in  Mississippi,  real  and 
personal  property,  more  than  sufficient  to  pay  all  his  liabilities  in 
that  State,  which  he  did  not  remove,  or  intend  to  remove.  The 
court  held,  that  in  such  case  an  attachment  would  not  lie,  and 
the  grounds  of  its  decision  were  thus  stated  :  "  The  object  of  the 
statute  is  to  afford  to  the  creditor  a  security  for  his  debt,  in  case 
the  debtor  is  about  to  remove  his  property  out  of  this  State,  so 
as  to  deprive  the  creditor  of  the  collection  of  his  debt  in  this 
State.  The  principle  upon  which  the  statute  proceeds,  is  tJie 
danger  of  loss  of  the  debt  by  the  re^noval  of  the  defendmifs  prop- 
erty;  and  this  reason  fails,  and  the  remedy  provided  by  the  statute 
plainly  does  not  apply,  where  the  debtor  is  removing  a  part  of 
his  property,  but  does  not  remove,  or  intend  to  remove,  another 
part  of  it,  subject  to  the  payment  of  the  debt,  amply  sufficient  to 
satisfy  it,  and  accessible  to  the  creditor's  execution,  and  such 
portion  of  his  property  remains  in  his  possession  openly  subject 
to  execution.     For,  when  property  to  such  an  amount,  and  so  sit- 

1  White  V.  Wilson,  10  Illinois  (6  Oilman),  21 ;  Ridgway  v.  Smith,  17  Ibid.  33. 
£50] 


CHAP.  III.]       DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  71  a 

uated,  remains  in  the  possession  of  the  debtor,  and  is  not  about 
to  be  removed  from  the  State,  it  could  not  be  justly  feaid  that  the 
creditor's  debt  would  be  in  danger  of  being  lost,  by  the  removal 
of  another  part  of  the  debtor's  property  from  the  State."  ^  Sim- 
ilar views  were  expressed  by  the  Supreme  Court  of  Florida.^ 
And  so  in  Alabama,  under  a  statute  authorizing  attachment 
"  when  the  defendant  is  about  to  remove  his  property  out  of  the 
State,  so  that  the  plaintiff  will  probably  lose  his  debt,  or  have  to 
sue  for  it  in  another  State."  ^ 

§  71.  In  Tennessee,  under  a  law  allowing  an  attachment  where 
a  debtor  "  is  removing,  or  about  to  remove  himself  or  his  property 
beyond  the  limits  of  this  State,"  an  attachment  was  obtained 
against  the  owner  of  a  steamboat,  on  the  allegation  that  he  was 
"  about  to  remove  the  said  steamboat  beyond  the  limits  of  this 
State."  The  court  intimated  that  the  designation  of  only  a  par- 
ticular piece  of  property,  as  about  to  be  removed,  if  it  stood  alone, 
would  not  be  sufficient  to  authorize  the  attachment ;  and  that  the 
affidavit  ought  to  use  the  words  of  the  statute,  or  should  exclude 
the  idea  that  other  property  might  still  be  left  by  the  defendant, 
within  the  jurisdiction,  amply  sufficient  to  satisfy  the  demand; 
but  considering  the  allegation  that  the  defendant  was  about  to 
remove  his  boat  equivalent  to  the  assertion  that  he  was  about  to 
remove  himself,  the  attachment  was  sustained.* 

§  71  a.  Debtors  fraudulently  disposing  of  their  property.  In 
many  States  an  attachment  is  authorized  upon  affidavit  that  the 
defendant  has  made,  or  is  about  to  make,  some  fraudulent  dispo- 
sition of  his  property.  The  particular  terms  of  the  different  stat- 
utes on  this  subject  are  set  forth  in  the  Appendix,  and  will  not 
be  referred  to  here,  except  in  connection  with  the  reported  cases. 
But  there  is  one  phrase,  —  ''his  property,"  —  which  is  common 
to  them  all,  and  the  scope  of  which  should  be  determined.  This 
was  done  by  the  Supreme  Court  of  New  York,  in  a  case  where 
the  ground  of  the  attachment  was,  that  the  defendant  had  stolen, 
secreted,  or  embezzled  money  of  the  plaintiff  to  the  amount  of 
$5,000  and  upwards ;  that  he  said  he  had  deposited  part  of  the 

1  Montague  v.  Gaddis,  37  Mississippi,  ^  Stewart  v.  Cole,  46  Alabama,  646. 
453.                                                                        *  Runyaa  v.   Morgan,  7   Humphreys, 

2  Haber  v.  Nassitts,  12  Florida,  689.        210. 

[51] 


§  73  DEBTORS,   ABSENT,   ABSCONDING,   ETC.      [CHAP.  IIT. 

proceeds  in  the  name  of  a  little  sister,  and  acknowledged  that  he 
did  this  to  avert  suspicion,  and  to  prevent  the  property  heing  taken 
from  liini,  and  to  conceal  it.  It  was  contended  that  an  attach- 
ment did  not  lie,  because  the  propert}Mvhich  he  so  concealed  was 
not  his ;  but  the  court  sustained  the  attachment,  and  said  :  "  The 
Code  speaks  of  the  secreting  of  the  defendant's  property.  By  that 
was  meant  any  property  in  his  possession,  and  to  which  he  claimed 
title,  although  his  title  was  imperfect  or  clearly  bad.  The  in- 
jury to  the  creditor,  and  the  intent  to  defraud,  are  as  clearly 
shown  in  that  case,  as  if  the  defendant  had  a  perfect  title  to  the 
property."  ^ 

§  72.  In  Missouri,  an  attachment  was  issued,  upon  affidavit  that 
the  defendant  had  fraudulently  conveyed,  assigned,  concealed,  and 
disposed  of  his  property  and  effects,  so  as  to  hinder,  delay,  and 
defraud  his  creditors.  The  defendant  pleaded  in  abatement,  trav- 
ersing the  allegations  of  the  affidavit.  On  the  trial  it  appeared 
that,  just  before  the  attachment  issued,  the  defendant  had  sold 
his  entire  stock  of  goods  to  a  person  to  whom  he  was  indebted, 
for  the  purpose  of  paj'ing  his  debt ;  and  it  was  held,  that  unless 
the  vendees  were  parties  to  the  fraud,  such  a  sale  was  not  to  be 
considered  fraudulent,  although  the  defendant,  about  the  time  it 
was  effected,  made  false  representations  as  to  his  condition  and 
intentions.^ 

§  73.  In  the  same  State  this  case  arose.  An  attachment  was 
sued  out,  on  the  ground  that  the  defendant  "  had  fraudulently 
conveyed,  assigned,  removed,  concealed,  and  disposed  of  his  prop- 
erty and  effects,  so  as  to  hinder,  defraud,  and  delay  his  creditors, 
and  that  he  was  about  to  do  those  things."  A  plea  in  abatement 
put  in  issue  the  truth  of  the  affidavit.  On  the  trial  it  appeared 
that  the  defendant,  being  indebted  to  the  plaintiff  and  others,  was 
permitted  by  them  to  take  a  certain  amount  of  goods,  under  a 
written  agreement  to  make  a  weekly  account  of  his  sales,  and 
pay  over  the  proceeds,  after  deducting  certain  charges  ;  and  that 
he  made  on  one  occasion  a  considerable  sale  of  goods  for  cash,  of 
which  he  made  no  return.  The  court  instructed  the  jury  that 
"■the  concealment  contemplated  by  the  statute  means  secreting 

1  Treadwell  v.   Lawlor,    15    Howard  -  Chouteau  v.    Slierman,  11  Missouri, 

Pract.  8.  385. 

[52] 


CHAP.  III.]      DEBTORS,   ABSENT,   ABSCONDING,    ETC.  §  74 

goods,  and  not  concealment  of  circumstances,  or  misrepresentation 
of  facts,  and  that  this  hist-mentioned  conduct  is  no  ground  for 
issuing  an  attachment."  This  was  held  by  the  Supreme  Court  to 
be  erroneous.  "  That  instruction,"  said  the  court,  "  declares  that 
the  concealment  referred  to  in  the  statute  must  be  a  concealment 
of  goods,  and  not  of  facts  and  circumstances.  This  distinction  we 
confess  ourselves  unable  to  appreciate.  If  the  defendant  had 
packed  away  in  his  cellar  goods  to  the  value  of  one  thousand 
dollars,  with  a  view  to  defraud  his  creditors  and  prevent  them 
from  collecting  their  debts,  this  is  conceded  to  be  a  fraud  within 
the  meaning  of  the  statute  ;  but  if  he  sells  the  same  goods,  and 
puts  the  money  in  his  pocket,  with  the  same  intent  of  cheating 
his  creditors  by  the  operation,  it  is  regarded  as  a  mere  concealment 
of  circumstances,  we  suppose,  and  therefore  not  such  a  conceal- 
ment as  is  reached  by  the  attachment  law.  The  statute  uses  the 
phrase  '  goods  and  effects.'  The  money  for  which  the  goods  were 
sold  by  the  defendant  was  as  capable  of  being  concealed  as  the 
goods  were,  and  the  concealment  of  the  money  is  surely  not  less 
a  fraud,  because  it  was  accompanied  with  a  concealment  and 
misrepresentation  of  facts  and  circumstances."^ 

§  74.  An  attachment  was  obtained  in  Missouri,  on  the  ground 
that  the  defendant  had  fraudulently  conveyed  his  property,  and 
was  about  to  conceal  or  dispose  of  his  property  so  as  to  hiuder 
and  delay  his  creditors.  The  defendant  denied  these  allegations. 
On  the  trial,  it  was  shown  that  he  had,  previous  to  the  issue  of 
the  attachment,  confessed  a  judgment  in  favor  of  another  party, 
upon  which  execution  was  issued,  and  when  the  sheriff  went  to 
defendant's  store  to  levy  the  same,  he  found  there  the  execution 
plaintiff,  who,  after  some  conversation  with  the  defendant,  in- 
structed the  sheriff  to  suspend  a  levy  until  further  orders  ;  and 
that  nothing  was  done  under  the  execution,  until  the  attachment 
was  placed  in  the  hands  of  the  sheriff,  when  the  execution  plain- 
tiff directed  a  levy.  This  was  held  by  the  court  to  be  a  fraud- 
ulent disposition  of  his  property  by  the  defendant  ;  and  it  was 
further  held,  that  the  declarations  of  the  execution  plaintiff  in 
connection  with  the  transaction  might  be  given  in  evidence 
against  the  defendant.^ 

In  the  same  State  an  attachment  was  obtained,  on  the  ground 

1  Powell  y.  Matthews,  10  Missouri,  49.  ^  Field  v.  Livermore,  17  Missouri,' 218. 

[53J 


§  75  DEBTORS,   ABSENT,   ABSCONDING,   ETC.      [CHAP.  III. 

that  the  defendant  "  had  fraudulently  conveyed  or  assigned  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors."  The 
evidence  showed  a  conveyance  by  the  defendant  of  a  stock  of 
goods  to  C.  to  secure  and  pay  debts  to  R.,  Avhich  conveyance  the 
plaintiff  endeavored  to  show  was  made  fraudulently,  so  as  to  hin- 
der and  delay  his  creditors.  It  was  held  unnecessary,  in  order  to 
sustain  the  attachment,  to  show  that  the  trustee  and  the  cestui 
que  trust  acted  in  bad  faith  ;  but  that  if  the  defendant  acted  with 
a  fraudulent  intent  in  making  the  deed,  it  was  sufficient ;  and 
that  his  statements,  made  shortly  after  the  execution  of  the  deed, 
might  properly  be  given  in  evidence  to  show  the  intent  with 
which  he  made  it.^  And  in  a  subsequent  case  it  was  decided, 
that  in  making  such  a  conveyance  the  fraudulent  intent  must  be 
shown  to  have  existed,  in  order  to  sustain  the  attachment,  and 
that  it  was  not  sufficient  merely  to  show  that  the  effect  of  the 
conveyance  was  to  hinder  and  delay  creditors.^ 

In  the  same  State,  where  an  attachment  was  obtained  on  the 
ground  that  the  defendant  was  about  fraudulently  to  conceal, 
remove,  or  dispose  of  his  property  or  effects  so  as  to  hinder  or 
delay  his  creditors,  it  was  held  not  necessary  to  show  that  he 
was  about  so  to  dispose  of  all  his  property,  but  that  the  attach- 
ment would  be  sustained,  if  he  was  about  so  to  dispose  of  any 
part  of  it.^     And  so  in  Kansas.* 

§  75.  In  New  York,  under  a  statute  which  allowed  an  attach- 
ment to  issue,  "  when  it  shall  satisfactorily  appear  to  the  justice 
that  the  defendant  is  about  to  remove  from  the  county  any  of  his 
property,  with  the  intent  to  defraud  his  creditors,  or  has  assigned, 
disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  of,  or  se- 
crete any  of  his  property  with  the  like  intent,"  an  attachment 
was  issued,  upon  affidavits  specifying  several  causes,  among 
which  was,  that  the  defendant  was  about  to  dispose  of  his  prop- 
erty with  intent  to  defraud  his  creditors.  The  affidavit  assigned 
the  existence  of  the  following  facts  as  evidence  of  that  intent : 
that  the  defendant  left  the  county  of  Chemung  two  months 
before,  and  went  to  the  province  of  Upper  Canada,  with  intent 
to  remain  there,  and  had  taken  with  him  some  portion  of  his  per- 
sonal property ;  that  he  had  no  family,  and  but  little  property ; 

1  Enders  v.  Richards,  33  Missouri,  598.  ^  Taylor  v.  Myers,  34  Missouri,  81. 

-  Spencer  v.  Deagle,  34  Missouri,  455.  *  Jolinson  i'.  Laughlin,  7  Kansas,  359. 

[54] 


CHAP.  III.]      DEBTORS,   ABSENT,    ABSCONDING,   ETC.  §  75 

that  he  was  offering  his  property  in  Chemung  county  for  sale  ; 
that  he  told  the  plaintiff  that  he  would  be  damned  glad  if  he  ever 
got  his  pay  of  him  ;  that  no  civil  process  could  be  served  on  him, 
because  he  kept  out  of  the  State ;  and  that  he  refused  to  pay  any 
thing  on  the  plaintiff's  debt.  It  was  held,  that  these  facts 
proved  a  strong  case  of  intent  to  dispose  of  property  to  defraud 
creditors.^ 

In  the  same  State  an  attachment  was  obtained,  on  the  ground 
that  the  defendant  was  "  about  to  assign  or  dispose  of  his  prop- 
erty, with  intent  to  defraud  his  creditors."  In  support  of  the  at- 
tachment, evidence  was  given  of  threats  of  the  defendant  to 
make  an  assignment  of  his  property,  and  that  plaintiff  would  get 
nothing,  and  to  put  his  property  out  of  his  hands  sooner  than  pay 
more  than  one  third  of  his  debts  ;  and  on  the  plaintiff's  refusing 
to  take  less  than  the  amount  of  his  claim,  the  defendant  threat- 
ened to  go  home  and  put  his  property  out  of  his  hands.  In  the 
Supreme  Court,  at  Special  Term,  Ingraham,  J.,  held  this  evi- 
dence to  warrant  the  presumption  of  a  fraudulent  intent  ;2  but  at 
General  Term  this  decision  was  reversed,  on  the  ground  that  the 
threat  of  the  defendant  to  make  an  assignment  of  his  property, 
was  a  threat  to  do  a  lawful  act ;  and  that  the  attachment  could 
not  be  sustained  without  presuming  an  evil  intent,  which  is  con- 
trary to  the  principle  that  we  are  not  to  presume  wrong  until 
wrong  is  plainly  indicated  ;  and  that  the  conduct  of  the  defend- 
ant in  subsequently  making  a  legal  and  valid  assignment  of  his 
property,  was  a  fact  to  be  considered  as  indicating  the  intent  of 
the  previous  threat.^  But  in  a  subsequent  similar  case,  where  it 
appeared  that  the  defendant's  assets  were  more  than  sufficient  to 
pay  all  the  other  claims  against  him  than  that  sued  on,  and  that 
he  only  tvanted  time  to  'pay  all  his  debts,  it  was  held,  that  the 
threatened  assignment  must  have  been  intended  to  be  fraudulent, 
or  an  instrument  of  fraud ;  and  the  attachment  was  sustained.* 
And  where  a  debtor  refused  to  pay  his  note  on  demand,  and  was 
told  by  the  creditor  that  he  would  be  sued  ;  and  he  thereupon 
threatened,  if  he  was  sued,  "  to  turn  over  all  his  property,  and 
that  the  creditor  wouldn't  get  a  cent ;  "  it  was  held,  that  this 
threat  evidenced  an  intention  to  dispose  of  his  property  so  as  to 

^  Rosenfield   v.  Howard,  15  Barbour,  97;  Dickinson  v.  Benham,  10  Ibid.  390; 

546.  12  Ibid.  158  ;  19  Howard  Pract.  410. 

2  Wilsony.Britton,  6  Abbott  Pract.  33.  *  Gasherie  v.  Apple,  14  Abbott  Pract. 

3  Wilson  V.  Britton,  G  Abbott  Pract.  64. 

[55] 


§  75  DEBTORS,   ABSENT,   ABSCONDING,    ETC.       [CHAP.  III. 

baffle  the  creditor  in  the  speedy  collection  of  his  debt,  and  the 
attachnient  was  sustained.^  It  will  be  observed  that  this  case 
differs  from  those  just  referred  to  in  this  connection,  in  that  the 
threat  was  not  to  pnt  his  propert}'  out  of  his  hands  by  making  an 
assignment.  This  difference  was  recognized  by  the  court,  which 
said  that  cases  in  which  the  only  threat  was  to  make  merely  a 
lawful  assignment,  were  inapplicable  to  this  case. 

In  the  same  State  it  appeared  that  the  defendant,  a  married 
woman  debtor,  when  called  upon,  on  several  occasions,  to  pay 
the  plaintiff,  put  it  off,  saying  that  her  husband,  every  night,  took 
all  the  monej'  which  she  had  received  during  tlie  day,  and  paid  it 
to  persons  from  whom  she  had  bought  goods;  but  it  was  proved 
that  he  did  not  pay  those  persons.  The  court  said  :  "  It  stands 
conceded  that  the  defendant  has  allowed  her  husband  to  take 
possession  of  all  her  money,  and  has  made  a  false  statement  of  the 
purpose  for  which  it  was  appropriated.  No  other  inference  can 
be  drawn  than  that  such  disposition  of  the  defendant's  money  to 
her  husband,  coupled  with  a  falsehood  as  to  the  purpose  for 
which  he  took  it,  was  made  with  intent  to  defraud  her  creditors, 
whom  she  put  off  upon  the  false  pretext  which  she  assigned. 
The  defendant,  therefore,  is  amenable  to  the  charge  of  having 
'  disposed  of '  her  '  property  with  intent  to  defraud '  her  cred- 
itors." ^ 

In  the  same  State,  the  question  arose  whether  the  allegation 
upon  which  the  attachment  was  obtained,  to  wit:  "that  the  de- 
fendants had  disposed,  and  were  about  disposing,  of  their  prop- 
erty, with  the  intent  to  defraud  their  creditors,"  was  sustained  by 
the  facts  set  forth  in  the  affidavit.  Those  facts  were,  that  when 
the  goods  were  purchased  by  the  defendants  from  the  plaintiff,  on 
account  of  which  the  suit  was  brought,  the  defendants  stated  that 
they  had  $25,000  cash  capital  in  their  business,  over  all  their 
debts  and  liabilities ;  that  they  had  other  property  in  addition, 
which  made  them  worth  $40,000,  and  that  they  were  doing  a  cash 
business :  that  a  few  weeks  thereafter,  when  their  indebtedness 
to  the  plaintiff  became  due,  they  declared  that  they  had  no 
money,  and  had  not  had  any  for  many  days,  except  what  they 
had  borrowed,  and  that  they  did  not  know  whether  they  were 
solvent  or  not ;  that,  within  a  month  prior  to  this  time,  their 

1  Livermore    v.   Rhodes,   27   Howard  2  Anderson   v.  O'Reilly,  54  Barbour, 

Pract.  506.  620. 

[56] 


CHAP.  III.]      DEBTORS,    ABSENT,   ABSCONDING,   ETC.  §  76 

stock  of  goods  had  amounted  to  $20,000,  but  that  it  had  now 
suddenly  become  reduced  in  amount  to  $2,000,  which  they  were 
then  packing  up  and  removing;  and  within  the  same  space  of 
time  they  had  secretly  removed  many  thousand  dollars'  worth  of 
goods  from  their  store,  and  sent  them  to  four  distant  places,  all 
directed  to  a  brother  of  one  of  the  defendants.  The  court  held 
the  affidavit  sufficient  to  authorize  the  attachment.^ 

§  75  a.  In  the  United  States  District  Court  for  Oregon  an 
attachment  was  obtained  upon  the  ground  that  the  defendant 
was  "  about  to  assign  or  dispose  of  his  property  with  intent  to 
delay  or  defraud  his  creditors."  Upon  a  motion  to  dissolve  the 
attachment,  evidence  was  given  tending  to  prove  that  the  de- 
fendant had  previously  assigned  his  property  to  his  creditors  in 
Oregon,  primarily,  for  the  purpose  of  preventing  the  collection 
of  the  claims  of  the  attaching  creditors,  who  were  citizens  of 
Ohio ;  and  that  if  sued  upon  the  claims  of  the  latter,  he  would 
again  make  some  disposition  of  his  property  to  prevent  them  from 
making  any  thing  on  execution,  if  they  obtained  judgment  against 
him.  The  court,  considering  that  a  prima  facie  case  had  been 
made  out,  held,  that  if  a  defendant  intends,  or  it  appears  proba- 
ble that  he  intends,  to  dispose  of  his  property,  for  the  purpose  of 
delaying  or  defrauding  these  particular  plaintiffs,  that  is  a  good 
cause  for  attachment  by  them  ;  and,  in  answer  to  the  objection 
by  defendant's  counsel,  that  proof  of  a  general  intent  on  the  part 
of  the  defendant  to  prevent  the  collection  of  the  particular  debts 
sued  on,  was  not  sufficient  to  sustain  the  allegation  that  the 
defendant  is  now  about  to  dispose  of  his  property,  with  intent, 
&c.,  the  court  said :  "  This  is  a  distinction  without  a  difference. 
That  which  a  person  intends  to  do,  generally,  it  may  be  properly 
said  he  is  about  to  do,  ready  to  do,  whenever  the  particular  occa- 
sion for  doing  so  occurs.  The  bringing  of  these  actions  was  such 
an  occasion  in  these  cases.  If  a  plaintiff,  under  such  circum- 
stances, must  wait  for  an  attachment  until  the  defendant  is 
apprised  of  the  commencement  of  the  action,  and  begins  to  carry 
out  his  general  intent,  b}^  disposing  of  his  property,  he  may  as 
well  not  have  it  at  all."  ^ 

§  76.  Where  an  attachment  in  chancery  was  obtained,  upon 

1  Talcott  V.  Rozenberg,  2  Daly,  203.  «  Haizlette  v.  Lake,  1  Deady,  469. 

See  Van  Loon  v.  Lyon,  4  Ibid.  149. 

[57] 


§  77  rt  DEBTORS,    ABSENT,   ABSCONDING,    ETC.       [CHAP.  III. 

the  complainant  alleging  his  belief  that  the  defendant  would  sell, 
conve}',  or  otherwise  dispose  of  his  property,  with  the  intent  to 
hinder,  delajs  and  defraud  the  complainant,  unless  prevented  by 
attachment;  it  was  held,  that  the  fraudulent  intent  must  be 
shown  to  have  existed  before  the  suing  out  of  the  attachment ; 
and  that  to  prove  it  to  have  originated  afterwards  was  not 
sufficient.^ 

§  77.  In  Iowa,  under  an  affidavit  that  "  the  defendant  is  in 
some  manner  about  to  dispose  of  or  remove  his  property  with  in- 
tent to  defraud  his  creditors,"  evidence  of  acts  done  by  him  ten 
years  before,  in  another  State,  was  held  not  admissible  or  relevant 
to  prove  the  truth  of  the  affidavit.  "  However  competent  such 
evidence  might  be,"  said  the  court,  "if  the  plaintiff  had  first 
given  testimony  of  any  fact  or  facts,  which  would  tend  directly  to 
establish,  on  his  part,  the  issue  joined,  in  order  to  strengthen  the 
evidence,  certainly,  until  some  ground  in  fact,  upon  the  issue 
thus  joined,  had  been  laid  for  its  operation,  it  was  inadmissible, 
being  irrelevant.  To  allow  such  facts  to  be  resuscitated  after  the 
lapse  of  ten  or  twelve  years,  and  made  the  gravamen  of  a  legal 
proceeding  such  as  this,  would  be  pushing  the  severity  of  the  at- 
tachment law  to  an  extreme  never  contemplated  by  the  legis- 
lature." 2 

§  77  a.  In  Minnesota,  an  affidavit  alleging  that  "  the  defendant 
is  about  to  dispose  of  his  property  with  the  intent  to  hinder, 
dela3%  and  defraud  his  creditors,"  was  considered  not  to  be  sus- 
tained by  showing  that  the  defendant,  who  was  insolvent,  was 
about  to  sell  for  a  fair  price  his  property,  consisting  of  an  exempt 
homestead,  and  other  real  estate,  with  the  purpose  and  intent  to 
apply  all  the  proceeds,  less  a  part  of  the  price  received  for  the 
homestead,  to  pay  his  just  debts  owing  to  a  portion  of  his  credit- 
ors. The  court  held,  that  those  facts  afforded  no  just  grounds 
for  inferring  that  he  was  about  to  dispose  of  the  property  with 
the  intent  to  defraud  other  creditors  ;  and  that  the  delay  in  pay- 
ing the  plaintiff,  which  might  result  from  the  defendant's  paying 
the  other  creditors,  was  not  such  a  delay  as  the  statute  contem- 
plated.* 

1  Warner  v.  Everett,?  B.  Monroe,  262.  3  Eaton  v.  Wells,  18  Minnesota,  410. 

2  Lewis  V.  Kennedy,  3  G.  Greene,  57. 

[58] 


CHAP.  IV.]  LIABILITY   OF   COKPOKATIONS,   ETC.  §  79 


CHAPTER     IV. 

LIABILITY    OF    CORPORATIONS    AND    REPRESENTATIVE    PERSONS 
TO   BE    SUED   BY   ATTACHMENT. 

§  78.  AVe  have  seen  that  debtors  are  liable  to  be  sued  by  attach- 
ment. This  might  be  supposed  to  include  all  descriptions  of  per- 
sons ;  but  we  find  that  doubts  have  arisen  as  to  the  liability  of 
corporations  to  attachment ;  and  that  there  are  some  descriptions 
of  natural  persons  who  are  exempt  from  it.  We  will  briefly  con- 
sider these  subjects. 

§  79.  Corporations.  At  an  early  day  the  Supreme  Court  of 
New  York  decided  that  an  attachment  did  not  lie  against  a  for- 
eign corporation.'  This  view,  however,  has  not  been  followed 
by  any  court  out  of  that  State,  except  the  Superior  Court  of 
Delaware,  —  not  the  court  of  last  resort  in  that  State,  —  by 
which  it  was  held,  that  though  the  word  "  person,"  in  the  attach- 
ment law,  would  embrace  an  artificial  as  well  as  a  natural  person, 
yet  as  the  legislature  had  made  no  provision  by  which  a  foreign 
corporation  could  put  in  special  bail,  or  enter  into  security  to  the 
plaintiff  to  defend  and  abide  the  result  of  the  action,  when  it 
appears  to  the  attachment,  it  must  be  considered  that  the  law 
does  not  contemplate  or  include  the  case  of  a  foreign  corporation.^ 
The  contrary  doctrine  has  been  announced  in  New  Plampshire, 
Pennsylvania,  Virginia,  Georgia,  Alabama,  Louisiana,  Tennessee, 
Illinois,  and  Missouri,  and  may  now  be  considered  as  settled.^  In 
many  of  the  States  corporations  are  expressly  subjected  by  stat- 
ute to  the  operation  of  the  process. 

1  McQueen  v.  Middletown  Man.  Co.,  Georgia,  531  ;    Wilson   v.  Danforth,  47 

16  Johnson,  5.  Ibid.  676;  Planters  &  Mercliants'  Bank 

'  Vogle  V.  New  Grenada  Canal  Co.,  1  v.   Andrews,   8   Porter,  404 ;    Martin   v. 

Houston,  2'j4.  Branch  Bank,  14  Louisiana,  415  ;  Hazard 

8  Libbey  v.   Ilodgdon,  9  New  Hamp.  v.  Agricultural  Bank,  11  Robinson  (La.), 

394 ;  Bushel  >k  Commonwealth  Ins.  Co.,  326 ;  Union  Bank  v.  U.  S.  Bank,  4  Hum- 

15  Sergeant  &  Hawle,  173;  U.  S.  Bank  v.  phreys,  369;  Mineral  Point  R.  R.  Co.  v. 

Merchants'  Bank,  1  Robinson  (Va.),  .573;  Keep,  22  Illinois,  9;  St.  Louis  Perpetual 

South  Carolina  R   R.  Co.  v.  McDonald,  5  Ins.  Co.  v.  Cohen,  9  Missouri,  421. 

[59] 


§  81  LIABILITY  OF   CORPORATIONS,   ETC.  [CHAP.  IV. 

§  80.  The  foreign  character  of  a  corporation  is  not  to  be  deter- 
mined by  the  place  where  its  business  is  transacted,  or  where  the 
corporators  reside,  but  by  the  phice  where  its  charter  was  granted. 
With  reference  to  inhabitancy,  it  is  considered  an  inhabitant  of 
tlie  State  in  which  it  was  iucorporated.^  And  where,  as  is  some- 
times the  case,  a  corporation  is  cliartered  by  two  or  more  States, 
it  is  a  domestic  corporation  in  each  of  them.^  And  if  a  corpora- 
tiou  created  in  one  State  be  authorized  by  the  law  of  another 
State  to  exercise  therein  certain  powers,  and  such  law  further 
declare  that  it  shall  be  there  entitled  to  all  the  privileges,  rights, 
and  immunities  conferred  upon  it  by  the  law  of  its  incorporation  ; 
and  it  is  not  by  the  law  of  the  State  where  it  was  incorporated 
liable  to  be  sued  by  attachment  for  the  mere  failure  to  pay  its 
debts ;  it  is  not  liable  to  be  sued  by  attachment  as  a  non-resident 
of  the  other  State. *^ 

§  81.  Representative  Persons.  In  New  York,  it  was  held,  in  a 
case  which  arose  at  an  early  pei'iod,  that  the  statute  of  that  State 
respecting  absent  debtors  did  not  warrant  proceedings  against 
heirs,  executors,  trustees,  or  others  claiming  merely  by  right  of 
representation.*  Sul)sequently  this  doctrine  was  recognized  and 
affirmed,  under  another  statute,  which  the  court  said  was  much 
more  explicit  than  that  which  Avas  the  subject  of  the  former  con- 
struction. Under  this  second  statute  an  attachment  might  be 
obtained  by  a  creditor  "  having  a  demand  against  the  debtor 
personally.''''^  The  same  views  have  been  expressed  in  Rhode 
Island,  Connecticut,  New  Jersey,  Pennsylvania,  South  Carolina, 

1  Harley  v.  Cliarleston  Steam-Packet  ^  Martin  v.  Mobile  &  0.  R.  R.  Co.,  7 
Co.,  2  Miles,  249;  South  Carolina  Railroad  Bush,  116.  In  New  Jersey,  there  is  a 
Co.  V.  McDonald,  5  Georgia,  531  ;  Day  v.  statute  authorizing  attachment  to  issue 
Newark  I.  R.  Man.  Co.,  1  Blatclifonl,  628  ;  "  against  any  corporation  or  body  politic 
Mineral  Point  R.  R.  Co.  w.  Keep,  22  Illinois,  not  created  or  recognized  by  the  laws  of 
9.  In  Cooke  v.  State  Nat.  Bank,  50  Bar-  this  State  ;  "  and  it  was  held,  that  an  au- 
bour,  339,  3  Abbott  Pract.  n.  s.  389,  under  thority  given  by  a  law  of  that  State  to  a 
a  statute  which  defined  a  foreign  corpora-  foreign  corporation  to  hold  real  estate 
tion  to  be  one  "  created  by  or  under  the  therein  for  the  purpose  of  tran.'<acting  its 
laws  of  any  other  State,  government,  or  business,  was  such  a  recognition  as  for- 
country,"  it  was  lield  that  a  national  bank  bade  its  being  proceeded  against  by 
organized  under  the  act  of  Congress,  and  attachment.  Pliillipsburgh  Bankv.  Lack- 
located  in  Boston,  was  a  foreign  corpora-  awanna  R.  R.  Co.,  3  Dutcher,  206. 

tion.     See,  to  the  same  effect,  Bowen  v.  ■*  Jackson  i-.Wals  worth,  IJohns.  Cases, 

First  Nat   Bank,  34  Howard  Pract.  408.  372;  Metcalf  v.  Clark,  41  Barbour,  45. 

2  Sprague  v.  Hartford  P.  &  F.  R.  R.  *  Matter  of  Hurd,  9  Wendell,  465. 
Co.,  5  Rliode  Island,  233. 

[60] 


CHAP.  IV.]  LIABILITY   OF    CORPORATIONS,   ETC.  §  82 

Georgia,  Alabama,  Louisiana,  and  the  District  of  Columbia.^  In 
Virginia,  however,  in  the  proceeding  by  foreign  attachment  in 
chancery^  the  heirs  of  a  deceased  debtor  may  be  proceeded  against, 
for  the  purpose  of  subjecting  the  property  of  their  ancestor  to 
the  payment  of  his  debt;^  and  a  creditor  of  an  absent  debtor, 
who  is  one  of  the  heirs  and  distributees  of  a  deceased  intestate  in 
Virginia,  ma}^  go  into  a  court  of  equity,  for  the  purpose  of  having 
a  division  and  distribution  of  the  estate  of  the  decedent,  and  of 
procuring  payment  of  his  debt  out  of  the  share  of  the  absent 
debtor  in  the  estate.^ 

§  82.  But  if  an  executor  or  administrator,  in  the  course  of  the 
discharge  of  his  duties  as  such,  place  himself  in  a  position  where 
he  becomes,  by  the  principles  of  law,  personally  liable,  as,  for  in- 
stance, if  he  enter  upon  leasehold  property  held  by  his  testator 
or  intestate  in  his  lifetime,  or  receive  the  rents  and  profits  there- 
of, he  thereby  becomes  chargeable  in  the  debet  and  detinet,  or  di- 
rectly on  the  covenant,  as  an  assignee,  and  may  be  proceeded 
against  personally,  and  need  not  be  named  as  executor  or  admin- 
istrator. Thus  a  lessee  covenanted  that  he,  his  executors, 
administrators,  or  assigns  would,  at  his  and  their  own  proper 
costs  and  charges,  pay  and  discharge  all  taxes,  duties,  and  assess- 
ments which  should,  during  the  term,  be  imposed  upon  the 
demised  premises  ;  and  the  lessee  died  intestate,  and  letters  of 
administration  were  granted  to  a  non-resident,  who  received  the 
rents,  issues,  and  profits  of  the  premises.  An  assessment  was 
imposed  upon  the  premises  in  the  laying  out,  opening,  and  con- 
tinuing of  a  street,  a  portion  of  which  the  lessor  was  obliged  to 
pay;  who  thereupon  instituted  proceedings  by  attachment  against 
the  administrator,  alleging  that  he  was  indebted  to  him  'personally^ 
and  the  court  sustained  the  attachment.* 

^  Bryant  v.  Fussel,  11  Rhode  Isl.ind,  ham  v.  Carrington,  14  Louisiana  Annual, 

286;  Stanton  i".  Holmes,  4  Day,  87  ;  Pea-  690;  Patterson  v.  McLaughlin,  1  Cranch, 

cock  I.  Wildes,  3  Halsted,   179;  Haiglit  C.  C.  352 ;  Henderson  y.  Henderson,  Ibid. 

V.    Bergli,  o   Green,  188;    McCoonibe  v.  469;  Sinitii    v.    Riley,  32   Georgia,   356; 

Dunch,  2    Dallas,  73;Pringle  v.  Black,  Williamson  r.  Beck,  8  Philadelphia,  269. 
Ibid.  97  ;   Weyman  v.  Murdock,  Harper,  -  Carrington  v.  Didier,  8  Grattan,  260. 

125;    Taliaferro  v.    Lane,   23   Alabama,  ^  Moores  y.  Wiiite,  3  Grattan,  139. 

869;  Brown  v.  Richardson,  1  Martin,  n.  9.  *  Matter  of  Galloway,  21  Wendell,  82. 

202 ;  Debuys  v.  Yerbey,  Ibid.  380 ;  Cheat- 

[61] 


§  85  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 


CHAPTER   V. 

AFFIDAVIT    FOR    OBTAINING    AN    ATTACHMENT. 

§  83.  Under  no  general  jurisdiction,  legal  or  equitable,  known 
to  any  S3'stem  of  unwritten  law  prevalent  in  Great  Britain,  or  in 
any  State  or  Territory  of  the  United  States,  has  any  court  or 
officer  authority  to  issue  or  grant  a  writ  of  attachment  against  a 
debtor's  property.  In  Great  Britain  —  as  shown  in  the  opening 
chapter  of  this  work  —  that  authority  exists  only  under  local 
custom ;  in  the  United  States  it  is  purely  statutory.  In  each 
country  it  belongs  to  the  class  of  special  and  limited  powers. 
Though  everywhere  here  vested,  by  statute,  in  courts  of  general 
jurisdiction,  its  essential  character  is  not  thereby  changed  :  to 
whatever  description  of  court  or  officer  its  exercise  is  committed, 
it  is  still  a  special  and  limited  power,  resting  upon  its  own  pecu- 
liar grounds,  acting  in  its  own  prescribed  modes,  and  leading  to 
its  own  specific  results. 

§  84.  In  nearly  all  the  States,  and  in  all  the  Territories,  an  affi- 
davit alleging  certain  facts  is  required,  as  authority  for  issuing  an 
attachment.  Wherever  so,  the  right  to  issue  it  depends  upon  that 
requirement  being  met.  There  is  no  more  right  to  issue  it  with- 
out the  prescribed  affidavit,  than  to  issue  an  execution  without  a 
judgment.  In  some  cases,  as  will  presently  appear,  the  validity 
of  all  subsequent  proceedings,  and  of  titles  derived  through  them, 
may  depend  on  the  conformity  of  the  affidavit  to  the  statute ; 
while,  in  a  much  larger  class  of  cases,  the  attacher  may,  through 
defects  in  that  respect,  lose  the  benefit  intended  to  be  afforded  by 
the  remedy.  What  relates  to  the  affidavit  is,  therefore,  funda- 
mental ;  and  hence  its  treatment  leads  naturally  to  the  statement 
of  some  points  in  the  subject  of  Jurisdiction. 

§  85.  Jurisdiction  is  the  power  to  hear  and  determine  a  cause  ;^ 

^  United  States  v.  Arredondo,  6  Peters,  691. 
[62] 


CHAP,   v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  85 

or,  more  fully  stated,  the  power  to  hear  and  determine  the  sub- 
ject-matter in  controversy  between  parties  to  a  suit,  —  to  adjudi- 
cate, or  exercise  any  judicial  power  over  them.^ 

What  shall  be  adjudged  or  decreed  between  the  parties,  is 
judicial  action.^ 

Tlie  exercise  of  jurisdiction  is  coram  judice  whenever  a  case  is 
presented  which  lawfully  calls  it  into  action.^  Of  course  the  con- 
verse follows,  that  the  exercise  of  jurisdiction  is  coram  non  judice 
when  the  case  presented  does  not  lawfully  call  it  into  action. 

Jurisdiction  is  either  general  or  special. 

General  jurisdiction  is  the  power  to  take  all  ordinary  judicial 
action  in  any  description  of  cause  brought  before  a  court  in  any 
common-law  mode,  or  in  any  mode  prescribed  by  statute  in  lieu 
and  as  the  equivalent  of  the  common-law  mode. 

Special  jurisdiction  —  necessarily,  also,  always  limited  —  is  the 
power,  derived  solely  from,  and  exercisable  only  according  to, 
statute,  to  take  such  judicial  action,  through  such  modes  of  pro- 
cedure, as  the  statute  authorizes  and  prescribes. 

A  court  may  be  at  the  same  time  one  of  general,  and  one  of 
special  and  limited,  jurisdiction.  It  may  be  limited  as  to  subjects, 
but  unlimited  as  to  persons.  It  may  be  limited  as  to  persons,  but 
unlimited  as  to  subjects.  It  may  be  unlimited  as  to  both  subjects 
and  persons,  but  limited  as  to  the  amount  for  which  it  may  render 
judgment.  It  may  be  unlimited  as  to  subjects,  persons,  and 
amount,  but  limited  as  to  modes  of  procedure. 

Jurisdiction,  of  either  kind,  acts  through  process  and  modes  of 
procedure ;  which  are  either  ordinary,  that  is,  such  as,  under  the 
general  law,  are  used  in  all  ordinary  actions ;  or  extraordinary, 
that  is,  such  as  are  provided  by  statute  for  exceptional  cases,  and 
are  available  only  under  particular  circumstances  designated  by 
statute. 

In  cases  of  the  exercise  of  general  jurisdiction,  the  presumption 
is  that  it  was  lawfully  exercised,  until  the  contrary  be  shown  by 
the  record.*     And  where  new  powers  are,  by  statute,  conferred 

1  Rhode  Island  v.    Massachusetts,   12  Ct.    319;  Harvey   v.   Tyler,   2   Wallace, 

Peters,  «57 ;  Grignon  v.  Astor,  2  Howard  328 ;  Davis   v.    Connelly,  4  B.    Monroe, 

Sup.  Ct.  319.  136;  Bimeler   v.    Dawson,    5   Illinois  (4 

Mlhode     Island     v.     Massachusetts;  Scammon),  536;  Siiuniway  w.  Stillnian,  4 

Grignon  v.  Astor ;  ut  supra.  Cowen,  292 ;  Bloom  v.  Burdick,   1  Hill 

»  United  States  y.  Arredondo,  »<s«7)ra.  (N.  Y.),  130;  Horner  w.  Doe,   1  Indiana, 

*  Voorhees  y.  Bank   U.S.,  10  Peters,  130;    Cox  v.   Thomas,   9   Grattan,   323; 

449;  Grignon  v.  Astor,  2  Howard  Sup.  Sears  v.  Terry,  26  Conn.  273.     In  Grig- 

[63] 


§85 


AFFIDAVIT   FOR  ATTACHMENT. 


[chap.  V. 


upon  a  court  of  general  jurisdiction,  to  be  exercised  in  the  usual 
form  of  common  law  or  chancery  proceedinsfs,  the  same  presump- 
tion will  be  made,  as  in  cases  falling  more  strictly  within  its  usual 
powers.^ 

But  where  a  court  or  officer  exercises  an  extraordinary  power, 
under  a  special  statute  prescribing  the  occasion  and  mode  of  its 
exercise,  no  such  presumption  arises :  on  the  contrar}^,  the  pro- 
ceedings of  such  court  or  officer  will  be  held  illegal,  unless  they 
be  according  to  the  statute,  and  the  facts  conferring  jurisdiction 
appear  affirmatively .''' 

When  the  proceedings  of  a  court  which,  by  its  constitution, 
has  only  special  and  limited  jurisdiction,  are  relied  on  as  support- 
ing any  right,  all  the  facts  requisite  to  confer  upon  it  the  jurisdic- 
tion it  exercised  must  be  averred  and  proved ;  ^  they  cannot  be 
presumed.* 

When  a  court  of  general  jurisdiction  is  invested,  by  statute, 


non  V.  Astor,  iit  supra,  the  Supreme  Court 
of  the  United  States  said  :  "  Tiie  true 
line  of  distinction  between  courts  wliose 
decisions  are  conclusive  if  not  removed 
to  an  appellate  court,  and  tliose  whose 
proceedings  are  nullities  if  their  jurisdic- 
tion does  not  appear  on  their  face,  is  this  : 
a  court  wliich  is  competent,  by  its  consti- 
tution, to  decide  on  its  own  jurisdiction, 
and  to  exercise  it  to  final  judgment,  with- 
out setting  forth  in  its  proceedings  the 
facts  and  evidence  on  which  it  is  ren- 
dered, wiiose  record  is  absolute  verity, 
not  to  be  impugned  by  averment  or  proof 
to  the  contrary,  is  of  the  first  description ; 
tiiere  can  be  no  judicial  inspection  behind 
the  judgment,  save  by  the  appellate 
power.  A  court  which  is  so  constituted 
that  its  judgment  can  be  looked  through 
for  tiie  facts  and  evidence  whicli  are 
necessary  to  sustain  it;  whose  decision 
is  not  evidence  of  itself  to  siiow  jurisdic- 
tion and  its  lawful  exercise,  is  of  the 
latter  description :  every  requisite  for 
either  must  appear  on  tiie  face  of  their 
proceedings,  or  tliey  are  nullities." 

i  Harvey  v.  Tyler,  2  Wallace,  328. 

-  Thatcher  v.  Powell,  6  Wheaton,  119; 
Walker  o.  Turner,  y  Ibid.  541 ;  Harvey 
V.  Tyler,  2  Wallace,  32«;  Granite  Bank 
V.  Treat,  18  Maine,  34U;  Morse  v.  Presby, 
5  Foster,  299 ;  Hall  v.  Howd,  10  Conn. 
614;  Brooks   v.   Adams,    11   Pick.   441; 

[64] 


Jones  V.  Reed,  1  Johns.  Cases,  20  ;  Cleve- 
land V.  Rogers,  6  Wendell,  438;  Dakin 
V.  Hudson,  tj  Cowen,  221 ;  Mills  v.  Mar- 
tin, 19  Johns.  7;  People  v.  Koeber,  7 
Hill  (N.  y.),  39;  Corwin  v.  Merritt,  3 
Barbour,  341 ;  Harrington  v.  People,  6 
Ibid,  mi ;  Camp  v.  Wood,  10  W'atts,  118  ; 
Harshaw  v.  Taylor,  3  Jones,  513  ;  Tift  v. 
Griffin,  5  Georgia,  185 ;  Commissioners 
V.  Thompson,  18  Alabama,  694  ;  Owen  v. 
Jordan,  27  Ibid.  008;  Reeves  v.  Clark,  5 
Arkansas,  27  ;  State  v.  Metzger,  26  Mis- 
souri, 65;  Rowan  v.  Lamb,  4  G.  Greene, 
468;  Wight  v.  Warner,  1  Douglass,  384; 
Bryan  v.  Smith,  10  Michigan,  229;  Su- 
pervisors V.  Le  Clerc,  4  Chandler,  56. 

"*  Sears  v.  Terry,  26  Conn.  273 ;  Frary 
V.  Dakin,  7  Johns.  75 ;  Morgan  v.  Dyer, 
10  Ibid.  101 ;  Mills  v.  Martin,  19  Ibid.  7  ; 
Wyman  v.  Mitchell,  1  Cowen,  310 ;  Da- 
kin V.  Hudson,  6  Ibid.  221 ;  Otis  v.  Hitch- 
cock, 0  Wendell,  433 ;  Stephens  v.  Ely,  6 
Hill  (N.  Y.),  607;  Ford  v.  Babcock,  1 
Denio,  158. 

4  Green  v.  Haskell,  24  Maine,  180; 
Bridge  v.  Ford,  4  Mass.  041;  Hall  v. 
Howd,  10  Conn.  514;  Snediker  *>.  Quick, 
1  Green,  306 ;  State  v.  Shreeve,  3  Green, 
57 ;  Bridge  v.  Bracken,  3  Chandler,  75 ; 
Wight  V.  Warner,  1  Douglass,  384; 
Chandler  v.  Nash,  5  Michigan,  409;  Fire- 
baugh  V.  Hall,  63  lUinois,  81. 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  87 

with  special  powers,  to  be  exercised,  not  through  its  ordinary- 
process  and  modes  of  procedure,  but  in  an  extraordinary  mode 
prescribed  by  statute,  neither  the  jurisdiction  nor  the  remedy  is 
to  be  extended  beyond  the  legislative  grant ;  ^  but  the  proceed- 
ings of  the  court  must  be  regarded  as  those  of  a  court  constituted 
with  special  and  limited  jurisdiction,  and  will  be  held  invalid  if 
the  facts  conferring  jurisdiction  do  not  appear.^ 

The  propositions  thus  briefly  stated  will  be  seen  to  bear  on  at- 
tachment proceedings. 

§  86.  Any  movement  by  a  court  is  an  exercise  of  jurisdiction.^ 
In  attachment  proceedings  the  issue  of  the  writ  of  attachment  is 
such  a  movement ;  *  and  where  the  right  to  exercise  jurisdiction 
in  that  mode  depends  upon  the  exhibition,  by  affidavit,  of  certain 
facts,  it  is  the  affidavit  which  brings  the  power  of  the  court  into 
action.  If  there  be  no  affidavit,  the  whole  attachment  proceeding 
is  incurably  void.^ 

§  87.  Hence,  in  an  attachment  suit,  under  any  system  requiring 
an  affidavit,  it  is  always  the  defendant's  right,  and  may  become 
that  of  others,  to  question  the  exercise  of  jurisdiction  in  the  par- 
ticular case  through  attachment,  because  of  the  want  of  legal 
foundation  therefor. 

In  this  connection,  therefore,  importance  attaches  to  the  point 
whether  the  defendant  was  personally  served  with  process  in  the 
action.  If  he  Avas,  or  if  he  appear  to  the  action  without  service, 
the  cause  becomes  mainly  a  suit  in  personam.,  with  the  added  in- 
cident, that  the  property  attached  remains  liable,  under  the  con- 
trol of  the  court,  to  answer  to  such  demand  as  may  be  established 
against  him  by  the  final  judgment  of  the  court.^     In  such  case,  if 

1  Pringle  v.  Carter,  1  Hill  (S.  C),  53.       Christie  v.  Unwin,  11  Adolphus  &  Ellis, 

2  Williamson  v.  Berry,  8  Howard  Sup.  373  ;  Muskett  v.  Druminond,  lOBarnewall 
Ct.   495;  Boswell   v.   Otis,  9   Ibid.   336;     &  Cresswell,  153. 

Ransom   v.    Williams,   2    Wallace,   313 ;  ^  Rliode  Island  v.   Massachusetts,  12 

Morse  v.  Presby,  5  Foster,  299  ;  Eaton  v.  Peters,  657  ;  Grignon  v.  Astor,  2  Howard 

Badger,  33  New  Hamp.  228;  Denning  v.  Sup.  Ct.  319. 

Corwin,    11    Wendell,    647;    Striker    v.  *  Non    potest    qitis     sine     hre.vi    aijere. 

Kelly,  7  Hill  (N.  Y.),  9;  Embury  v.  Con-  Fleta,  1.  2,  c.  13,  §  4.     Nemo  sine  actione 

nor,  3  Comstock,  511  ;  Gray  v.  McNeal,  experitnr,  et  hoc  nan  sine  brevi  sice  libello 

12  Georgia,  424;  Foster  v.  Glazener,  27  conventionali.     Bracton,  112. 

Alabama,  391  ;  Haywood  v.   Collins,  60  5  Inman  v.  AUport,  66  Illinois,  540. 

Illinois,  328;  Firebaugh  v.  Hall,  03  Ibid.  «  Cogper  v.  Reynolds,  10  Wallace,  308. 


81;  Cooper  v.  Sunderland,  3  Iowa,  114; 


[65] 


§  87  a  AFFIDAVIT   FOR    ATTACHMENT.  [CHAP.  V. 

lie  make  no  question  of  the  right  of  the  court  to  exercise  jurisdic- 
tion over  him  b}^  attachment,  the  proceedings,  liowever  defective 
the  affidavit,  will  be  valid  ;  and  the  rights  acquired  through  them 
will  not  depend  on  the  attachment  for  their  validity,  but  upon 
the  judgment  ;  which,  in  such  case,  cannot  be  impeached  in  any 
collateral  proceeding.^ 

When,  therefore,  the  defendant  appears  to  the  action,  and  in 
any  authorized  wa}^  assails  the  attachment  on  account  of  absence 
of,  or  insufficiency  in,  the  affidavit,  his  motion  or  plea  is  based, 
not  upon  mere  irregularity  in  the  proceedings,  but  upon  the  want 
of  proper  foundation  for  the  exercise  of  jurisdiction  over  him  in 
that  particular  mode.  If  his  motion  or  plea  be  sustained,  the  writ, 
and  all  proceedings  under  it,  are  coravi  nonjudice  and  void,^  un- 
less the  defect  be  amendable,  and  be  amended  ;  and  no  such 
amendment  can  be  made,  unless  authorized  by  law  expressly 
applicable  to  such  cases.^ 

§  87  a.  The  matter  for  present  consideration,  however,  is  not 
the  defendant's  proceedings  to  defeat  the  attachment  ;  but 
whether,  and  to  what  extent,  attachment  proceedings  may  be 
assailed  collaterally  for  infirmity  in  the  affidavit,  when  title  is 
claimed  through  them.  If  vulnerable  at  all  in  this  respect  when 
so  assailed,  it  must  be  because  the  affidavit  was  not  lawfully 
sufficient  to  support  jurisdiction  by  attachment ;  for  no  doctrine 
is  better  settled  than  that  mere  errors  and  irregularities  in  judicial 
action  cannot  be  questioned  collaterall}',  but  must  be  corrected 
by  some  direct  proceeding  for  that  purpose,  either  before  the 
same  court,  to  set  them  aside,  or  in  an  appellate  court.^ 

But  it  is  equally  well  settled  that  the  jurisdiction  of  any  court, 
exercised  in  any  case,  may  be  assailed  in  other  courts,  in  which 

1  Toland  v.  Sprague,  12  Peters,  300.  354  ;  McCulloeh  v.  Foster,  4  Yerger,  162  ; 

••2  Smith  V.   Luce,    14   Wendell,    237 ;  Conrad  r.  McGee,  9  Ibid.  428 ;  Whitney 

Ex  parte  Haynes,  18  Ibid.  611 ;  Ex  parte  v.  Brunette,  15  Wisconsin,  61. 
Robinson,  21  Ibid.  672  ;  In  re  Faulkner,  •*  Brown    v.  McCluskey,  26   Georgia, 

4  Hill  (N.  Y.),  598 ;  //;  re  Bliss,  7  Ibid.  677 ;     Cohen    v.    Manco,    28    Ibid.    27 ; 

187  ;    Mantz   v.   Hendley,   2    Hening    &  Slaughter  v.  Bevans,  1  Pinney,  348. 
Munford,   308 ;   McReynolds   v.   Neal,   8  *  Kempe's     Lessee     v.    Kennedy,    5 

Humphreys,    12;    Maples    v.    Tunis,    11  Cranch,    173;    Thompson    v.    Tolmie,    2 

Ibid.  108;  Wight  v.  Warner,  1  Douglass,  Peters,  157;  Voorhees  v.  Bank  U.  S.,  10 

384 ;    Buckley   v,   Lowrey,   2   Michigan,  Ibid.  449 ;  Harvey  v.  Tyler,  2  Wallace, 

418  ;  Clark  v.  Roberts,  1  Illinois  (Breese),  328 ;  McGavock  i'.  Bell,  3  Coldweli,  512  ; 

222 ;  Cadwell  V.  Colgate,  7  Barbour,  253 ;  Gibbons   v.    Bressler,    61    Illinois,    110; 

Bruce  v.  Cook,  6  Gill  &  Johnson,  345 ;  Kruse  v.  Wilson,  79  Ibid.  233. 
Kennedy  v.   Dillon,   1   A.  K.  Marshall, 
[66] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  87  6 

its  proceedings  are  relied  on  by  a  party  claiming  the  benefit  of 
thera;!  and  if  there  be  found  in  them  a  total  want  of  jurisdic- 
tion, they  may,  by  the  court  in  which  they  are  questioned,  be 
rejected  as  a  nullity,  conferring  no  right  and  affording  no  justifi^ 
cation. 2 

And  no  court  exercising  a  special  and  limited  power  can  so 
determine  its  right  to  take  jurisdiction  through  that  power  in  a 
given  case,  as  to  preclude  one  not  a  party  to  the  proceedings  from 
questioning  that  right  in  a  collateral  inquiry ;  for,  as  the  validity 
and  conclusiveness  of  the  decision  on  that  point  must  depend  on 
the  authority  of  the  court  to  make  it,  the  decision  cannot  be  con- 
clusive evidence  of  that  authority.  This  would  be  saying  that 
the  court  had  jurisdiction  to  decide,  because  it  had  decided  that 
it  had  jurisdiction.^ 

§  87  h.  It  is  where  attachment  proceedings  are  purely  ex  parte 
—  the  defendant  not  being  personally  served  with  process,  and 
not  appearing  to  the  action  —  that  the  collateral  impeachment  of 
the  attachment  for  jurisdictional  defect  may  be  to  him,  or  to  per- 
sons claiming  under  him,  a  matter  of  signal  importance.  There 
the  proceeding  is  simply  one  to  take,  by  process  of  law,  one  man's 
property,  and,  without  his  assent  or  knowledge,  give  it  to  another : 
a  severe  recourse,  in  derogation  of  the  common  law  ;  in  regard  to 
which  nothing  in  favor  of  jurisdiction  is  to  be  presumed,  and 
which  the  law  demands  shall  be  pursued  in  conformity  with  the 
statute  under  which  it  is  taken,  or  no  title  will  pass  through  its 
instrumentality.* 

1  Elliott  V.  Peirsol,  1  Peters,  328 ;  "  Broadhead  v.  McConnell,  3  Barbour, 
Shriver  y.  Lynn,  2  Howard  Sup.  Ct.  43;  175;  Wheeler  v.  Townsend,  3  Wendell, 
Russell  V.   Perry,   14   New   Hamp.   152 ;     247 ;  Sears  v.  Terry,  26  Conn.  273. 

Hall  V.  Williams,  6  Pick.  232  ;  Aldrich  i;.  *  Thatcher  v.  Powell,  6  Wlieaton,  119  ; 

Kinney,  4  Conn.  380;  Borden  v.  Fitch,  Ronkendorff  v.    Taylor,   4    Peters,   341); 

15  Johns.   121 ;  Starbuck   v.   Murray,  5  Parker  v.  Overman,  18  Howard  Sup.  Ct. 

Wendell,  148 ;  Shumway  v.  Stillman,  4  137  ;    Ransom   v.   Williams,   2    Wallace, 

Cowen,  292;  Noyes  y.  Butler,  6  Barbour,  313;  Denning  v.  Smith,  3  Johns.   Cli'y, 

613;  Chemung  Bank  i'.  Judson,  4  Selden,  332;  Jackson  v.  Shepard,  7   Cowen,  88; 

2.54;  Holt  ?;.  Alloway,  2  Blackford,  108;  Atkins    v.    Rinnan,    20    Wendell,    241; 

Earthman  y.  Jones,  2  Yerger,  484  ;  Rogers  Bloom  v.   Burdick,   1  Hill  (N.  Y.),  130; 

V.  Coleman,  Hardin,  413;  Davis  v.  Con-  Sliarp  v.  Speir,  4  Ibid.  76;  Sherwood  v. 

nelly,  4  B.  Monroe,  136.  Reade,  7  Ibid.  434 ;  Corwin  v.  Merritt,  3 

2  Thompson  v.  Tolmie,  2  Peters,  157  ;  Barbour,  341  ;  Harrington  v.  People,  6 
Voorhees  v.  Bank  U.  S.,  10  Ibid.  449.  Ibid.  607  ;  Kelso  v.  Blackburn,  3  Leigh, 
For  cases  in  which  it  has  been  held  that  299  ;  Barksdale  v.  Ilendree,  2  Patton,  Jr., 
judgment   against   a   garnishee    will  not  &  Heath,  43. 

protect  liiui,  where  the  court  has  no  juris- 
diction of  the  defendant,  see  post,  §  696. 

[67] 


§  88  AFFIDAVIT   FOE   ATTACHMENT.  [CHAP.  V. 

§  87  c.  As  will  appear  in  a  succeeding  portion  of  tliis  cliapter,i 
an  attachnient  issues,  in  some  States,  as  a  matter  of  right,  upon 
affidavit  being  made  that  certain  facts  exist  ;  wliile  in  others  it  is 
required  that  the  officer  shall  be  satisfied,  by  affidavit  presented 
to  him,  of  the  existence  of  the  facts.  In  the  former  case  the 
officer's  duty  is  merely  ministerial,  involving  no  inquiry  on  his 
part,  except  as  to  whether  particular  facts  are  sworn  to;  in  the 
latter,  his  functions  are  judicial,  as  well  as  ministerial  ;  he  must 
be  satisfied  judicially,  by  the  affidavit,  not  merely  that  the  facts 
are  sworn  to,  but  that  the  evidence  is  sufficient  to  prove  that  they 
really  exist.  It  will  be  noticed  that  the  cases  about  to  be  cited, 
in  which  attachments  have  been  successfully  assailed  collaterally, 
on  account  of  insufficient  affidavit,  have  arisen  under  each  of 
those  systems. 

§  88.  The  cases  in  which  ex  parte  attachment  proceedings  have 
been  successfully  assailed  collaterally,  for  insufficiency  in  the  affi- 
davit to  sustain  jurisdiction,  were  those  in  which  title  to  property 
was  claimed  through  those  proceedings.  Such  have  arisen  in  New 
York,  where  the  officer  issuing  the  attachment  acts  judicially,  in 
determining  wliether  the  facts  stated  in  the  affidavit  establish  the 
ground  of  attachment ;  and  in  Tennessee  and  Missouri,  where  the 
writ  issues  upon  affidavit  simply  of  the  existence  of  certain  facts. 
In  all  those  States  the  question  arose  in  actions  of  ejectment.  In 
New  York,  the  plaintiff  claimed  title  as  a  purchaser  at  a  sale 
made  by  trustees,  appointed  under  the  law  of  that  State,  in  a 
proceeding  by  attachment ;  the  trustees  being  there  empowered 
to  sell  the  property  attached.  The  title  thus  set  up  was  assailed 
for  want  of  jurisdiction  in  the  officer  who  issued  the  attachment, 
because  of  the  defective  character  of  the  affidavits,  in  not  laying 
a  sufficient  ground  for  its  issue.  The  court  went  into  an  exami- 
nation of  the  affidavits,  and  declared  them  insufficient,  and  held 
that  the  attachment  was  void  ;  that  the  subsequent  proceedings 
fell  with  it ;  and  that  the  sale  by  the  trustees  conferred  no  title 
on  the  purchaser.  "  There  was,"  said  the  court,  "■  conferred  upon 
the  judge  who  issued  the  attachment  a  special  and  limited  juris- 
diction. It  is  well  settled  that  when  certain  facts  are  to  be  proved 
to  a  court  having  only  such  a  jurisdiction,  as  a  ground  for  issuing 
process,  if  there  be  a  total  defect  of  evidence  as  to  awy  essential 

1  Post,  §§  97-100. 
[68] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  88 

fact,  the  process  will  be  declared  void,  in  whatever  form  tlie  ques- 
tion may  arise.  But  when  the  proof  has  a  legal  tendency  to 
make  out  a  proper  case,  in  all  its  parts,  for  issuing  the  process, 
then,  although  the  proof  may  be  slight  and  inconclusive,  the  pro- 
cess will  be  valid  until  it  is  set  aside  by  a  direct  proceeding  for 
that  purpose.  In  one  case,  the  court  acts  without  authority;  in 
the  other,  it  only  errs  in  judgment  upon  a  question  properly  be- 
fore it  for  adjudication.  In  one  case,  there  is  a  defect  of  jurisdic- 
tion ;  in  the  other,  there  is  only  an  error  of  judgment.  Want  of 
jurisdiction  makes  the  act  void  ;  but  a  mistake  concerning  the 
just  weight  of  evidence  only  makes  the  act  erroneous,  and  it  will 
stand  good  until  reversed."  ^ 

The  cases  in  Tennessee  are  of  the  same  character.  In  one  of 
them  the  court  said :  "  It  appears  from  the  record  of  these  proceed- 
ings, that  the  affidavit  was  defective,  in  not  stating  the  cause  for 
which  the  attachment  issued,  whilst  the  attachment  is  good  in 
point  of  form,  and  assumes,  in  effect,  that  a  perfect  affidavit  was 
made.  It  is  now  insisted  that  the  writ  of  attachment  shall  be 
conclusive  as  to  all  the  material  facts  it  assumes,  and  that  it  can 
neither  be  aided  nor  impaired  by  reference  to  the  affidavit  required 
in  such  cases ;  that  the  affidavit  is  not  required  to  be  recorded 
with  the  other  proceedings  in  the  Circuit  Court,  and  that  there- 
fore we  can  take  no  judicial  notice  of  it.  It  will  be  observed, 
however,  by  reference  to  the  act  just  referred  to,  that  it  is  re- 
quired that  the  affidavit  be  made  part  of  such  record.  We  think 
it  a  reasonable  and  proper  rule  that  the  validity  of  this  description 
of  judicial  sales  shall  be  tested  by  the  record  of  the  Circuit  Court, 
made  in  pursuance  of  the  statute.  It  was  intended  by  the  statute 
that  such  record  should  be  the  proper  and  permanent  memorial 
of  the  validity  of  the  sale.  The  affidavit  forms  a  material  part  of 
the  record,  and  we  think  we  are  not  precluded  by  the  writ  of 

attachment  from  taking  judicial  notice  of  it The  affidavit 

was  materially  defective,  and  was  not  amended.  The  conse- 
quence is,  that  the  judgment  and  execution  on  the  attachment 
were  void,  and  the  sale  communicated  no  title  to  the  pur- 
chaser." 2 

1  Staples  u.  Faircliild,  3  Comstock,  41 ;  wliere  a  title  derived  througli  ex  parte 
Miller  v.  Brinkerlioff,  4  Denio,  118.  attachment  proceedings  was  held  invalid, 

-  Maples    V.    Tunis,    11    Humphreys,     hecause   the   affidavit  was  made  several 
108;  Conrad  v.  McGce,   9  Yerger,  428.     days  before  the  attaclnuent  issued. 
See  Wilson  v.  Arnold,  6  Michigan,  98, 

[69] 


§  89  AFFIDAVIT    FOR   ATTACHMENT.  [CHAP.  V. 

In  Missouri,  the  statute  requires  the  plaintiff,  before  an  attach- 
ment can  issue,  to  file  an  afiidavit,  stating  that  he  has  a  just  de- 
nnmd  against  the  defendant,  and  the  amount  thereof  which  the 
affiant  believes  the  plaintiff  ought  to  recover,  after  allowing  all 
just  credits  and  set-offs,  and  that  he  has  good  reason  to  believe, 
and  does  believe,  the  existence  of  one  or  more  of  the  causes 
which,  according  to  the  provisions  of  the  statute,  would  entitle 
the  plaintiff  to  sue  by  attachment.  There  an  attachment  was 
issued  upon  an  affidavit  merely  stating  that  to  the  best  of  affiant's 
knowledge  and  belief  the  defendants  were  non-residents  of  the 
State.  The  attachment  was  levied  on  real  estate,  and  the  suit 
was  prosecuted  ex  parte  to  judgment,  the  defendant  being  noti- 
fied by  publication.  Under  execution  the  land  was  sold,  and  the 
validity  of  the  title  thereby  acquired  was  the  point  in  controversy  ; 
the  decision  of  which  turned  on  the  question  whether  the  court 
had  ever  acquired  jurisdiction  of  the  attachment  proceeding. 
The  court  held,  that  the  affidavit  was  no  foundation  for  the 
exercise  of  jurisdiction,  and  that  no  title  passed  under  the  sale.^ 

§  89.  From  what  has  been  presented  in  the  preceding  sections 
of  this  chapter,  the  following  propositions  in  regard  to  ex  parte 
attachment  proceedings,  under  any  system  requiring  an  affidavit 
as  the  ground  for  issuing  the  writ,  may  be  considered  estab- 
lished : 

1.  The  issue  of  a  writ  of  attachment  is  a  movement  in  the 
exercise  of  jurisdictior. 

2.  There  is  no  lawful  right  to  make  that  movement,  unless 
such  ground  be  laid  therefor,  by  affidavit,  as  the  law  prescribes. 

3.  If  there  be  no  affidavit,  or  if  there  be  one,  but  with  a  total 
absence  therefrom  of  statement  of  any  fact  prescribed  by  law  as 
essential  to  the  issue  of  the  writ,  then,  in  either  such  case,  the 
writ  is  coram  non  judice  and  void. 

4.  If,  however,  the  affidavit  have  a  legal  tendency  to  make  out 
a  case,  in  all  its  parts,  for  issuing  the  writ,  then  the  jurisdiction 
will  be  sustained,  though  the  affidavit  be  defective,  until  the  pro- 
ceedings are  set  aside  in  some  direct  resort  for  that  purpose. 

5.  The  proceedings  in  ex  parte  cases  under  a  void  attachment 
may,  in  a  collateral  inquiry,  be  rejected  as  a  nullity  by  any  court 
in  which  rights  are  asserted  under  them. 

i  Bray  ;;.  McClury,  55  Missouri,  128. 
[70] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  89  fit 

§  89  «.  These  propositions  hinge  upon  the  issue  of  the  writ  as 
the  first  movement  in  the  exercise  of  jurisdiction.  If  lawfully- 
issued,  and  property  of  the  defendant  be  attached  under  it,  then 
the  foundation  for  further  judicial  action  is  laid.  But,  if  unlaw- 
fully issued,  nothing  done  under  it  in  ex  parte  cases  can  claim 
validity.  For,  as  no  jurisdiction  in  personam  exists  as  to  the  de- 
fendant, whether  the  court  can  lawfully  act  at  all  depends  upon 
its  right  to  exercise  jurisdiction  in  rem.  If  there  be  neither  per- 
son nor  thing  for  its  jurisdiction  to  act  upon,  the  whole  proceed- 
ing necessarily  falls. ^  Every  such  suit,  therefore,  proceeds  to 
final  judgment  upon  the  assumption,  that,  through  the  operation  of 
the  writ,  the  defendant's  property  has  been  laivfully  subjected  to 
the  power  of  the  court.  But  if  it  was  attached  under  a  writ  un- 
lawfully issued,  it  has  not,  in  contemplation  of  law,  been  at  all 
subjected  to  that  power  ;  and  no  dominion  which  the  court  may, 
through  the  forms  and  agencies  of  the  law,  exercise  over  it,  can 
devest  the  defendant's  title  to  it ;  for  it  is  a  dominion  without 
jurisdictional  right. 

If  these  views  be  not  correct,  then  it  would  seem  that  all  col- 
lateral inquiry  into  the  legality  and  validity  of  ex  parte  attachment 
proceedings  can  be  precluded  by  the  mere  production  of  a  writ, 
no  matter  how  unlawfully  issued,  with  a  return  thereon  of  prop- 
erty attached  ;  thus  making  the  writ  and  return  incontrovertible 
evidence  of  their  own  legality.  Should  this  ever  become  settled 
law,  of  course  the  rule  caveat  ertxptor.,  universally  and  immemori- 
ally  applied  to  purchasers  at  judicial  sales,^  would  be  inapplicable 
to  this  class  of  cases.^ 

^  Ante,  §  5 ;  post,  §  449.  should  not  be  questioned ;  some  protec- 
^  Tlie  Monte  Allegre,  9  Wheaton,  616 ;  tion  afforded  to  those  who  purchase  at 
Smith  V.  Painter,  5  Sergeant  &  Rawie,  sales  by  judicial  process ;  and  some  defi- 
223;  Yates  v.  Bond,  2  Nott  &  McCord,  nite  rules  established,  by  which  property 
382 ;  Murphy  v.  Higginbottom,  2  Hill  thus  acquired  may  be  transmissible,  with 
(S.  C),  397;  McWliorter  v.  Beavers,  8  security  to  the  possessors."  Undoubtedly 
Georgia,  300 ;  O'Neal  v.  Wilson,  21  Ala-  sound  as  general  propositions ;  but,  on 
bama,  288;  Lang  v.  Waring,  25  Ibid,  the  other  hand,  sanctity  is  not  attributa- 
625  ;  Vattier  v.  Lytle,  6  Ohio,  477  ;  Creps  ble  to  judicial  proceedings  devoid  of  juris- 
V.  Baird,  3  Ohio  State,  277;  Rodgers  v.  dictional  right ;  nor  is  protection — save 
Smith,  2  Indiana,  526 ;  Boggs  v.  Har-  by  statutory  limitation,  based  on  adverse 
grave,  16  California,  559;  Arendale  v.  possession  —  due  to  a  purchaser  at  a  sale 
Morgan,  5  Sneed,  703.  in  pursuance  of  a  judgment  which  the 
3  In  Voorliees  v.  Bank  U.  S.,  10  court  had  no  authority  to  render.  More 
Peters,  449,  the  Supreme  Court  of  the  especially  should  no  man's  property  be 
United  States  said  :  "  Some  sanctity  taken  from  him  and  given  to  another, 
should  be  given  to  judicial  proceedings;  unless  by  lawful  authority  lawfully  pur- 
some   time   hmited,  beyond  wiiich  tiiey  sued  ;  and  the  duty  of  guarding  an  ab- 

[71] 


§  89  6 


AFFIDAVIT   FOR    ATTACHMENT. 


[chap.  V. 


§  89  h.  But  it  is  only  in  regard  to  jurisdiction  that  the  judicial 
action  of  any  court  may  be  collaterally  impugned.  As  we  have 
seen,  it  cannot  be  on  account  of  mere  errors  and  irregularities.^ 
When  jurisdiction  appears,  the  maxim  omnia  prcesumuntur  rite 
esse  acta  applies  in  favor  of  the  proceedings  of  every  court, 
whether  superior  or  inferior,  or  of  general  or  limited  jurisdic- 
tion.2 

In  such  case  the  title  acquired  through  the  attachment  will  be 
sustained,  though  it  should  afterwards  be  shown  that  the  allega- 
tions in  the  affidavit  upon  which  the  writ  issued  were  false. 
Thus,  in  New  Jersey,  a  bill  in  equity  was  dismissed,  which  sought 
to  set  aside  a  sale  of  real  estate  under  attachment  proceedings, 
on  the  ground  that  the  defendant,  who  had  been  sued  as  a  non- 
resident, was,  in  fact,  when  the  attachment  issued,  a  resident. 
The  court  held,  that  in  the  attachment  suit  the  foundation  of 
the  proceedings  and  of  jurisdiction  was,  not  the  non-residence  of 
the  defendant,  but  the  plaintiff's  affidavit  of  that  fact ;  and  that  the 
l^roceedings  could  not  be  collaterally  assailed  as  void,  by  showing 
the  falsity  of  the  affidavit ;  though  if  its  falsity  had,  while  the 


sent  one  against  the  unlawful  seizure 
and  transfer  of  liis  property,  without  his 
knowledge,  is  more  sacred,  and  more 
consonant  with  the  maxims  of  law  and 
the  dictates  of  justice,  tlian  that  of 
shielding  a  volunteer  purcliaser  at  a  judi- 
cial sale ;  upon  whom,  in  law,  is  the 
obligation  to  see  that  the  proceedings 
through  wiiich  he  seeks  to  acquire  a  title 
rest  on  a  sure  foundation  of  jurisdiction. 
In  Wilson  v.  Arnold,  5  Micliigan,  98,  the 
court  said  :  "  When  the  want  of  jurisdic- 
tion appears  on  the  record  of  a  court  of 
general  jurisdiction,  the  record  is  a  nullity, 
and  no  rights  can  be  acquired  under  it. 
To  hold  otherwise  would  be  giving  to 
courts  a  right,  by  the  form  of  law  only, 
to  take  property  from  an  individual 
against  his  consent,  and  give  it  to  an- 
other, by  an  ex  parte  proceeding  not  au- 
thorized by  law.  If  it  be  said,  It  is  nec- 
essary to  protect  innocent  purchasers, 
we  reply,  When  one  of  two  innocent  per- 
sons must  suffer,  he  who  is  most  in  fault 
must  be  the  victim.  Now,  who  is  most 
in  fault, —  the  defendant  in  the  attach- 
ment suit,  who  knows  notliing  of  the 
proceedings  against  him,  or  he  who  pur- 

[72] 


chases  property  under  such  proceedings, 
without  looking  into  them  to  see  whether 
they  are  authorized  by  law  1  It  is  a  well- 
settled  principle,  that  one  who  purchases 
property  without  looking  into  the  title- 
deed  of  his  grantor  is,  by  his  own  negli- 
gence, chargeable  with  notice  of  any  de- 
fect in  the  title  appearing  on  the  face  of 
the  deed." 

1  Ante,  §  87,  a. 

'^  Cooper  V.  Sunderland,  3  Iowa,  114; 
Morrow  v.  Weed,  4  Ibid.  77;  Little  r. 
Sinnett,  7  Ibid.  324 ;  State  v.  Berry,  12 
Ibid.  58 ;  Rowan  v.  Lamb,  4  G.  Greene, 
468;  Commissioners  v.  Thompson,  18 
Alabama,  694;  Sheldon  v.  Newton,  3 
Ohio  State,  494;  Reeves  v.  Townsend, 
2  Zabriskie,  396 ;  Paul  v.  Hussey,  35 
Maine,  97  ;  State  v.  Hinchman,  27  Penn. 
State,  479 ;  Fowler  v.  Jenkins,  28  Ibid. 
176 ;  Wall  i;.  Wall,  28  Mississippi,  409 ; 
Cason  V.  Cason,  31  Ibid.  578 ;  Fox  v. 
Hoyt,  12  Conn.  491  ;  Raymond  v.  Bell, 
18  Ibid.  81  ;  Wight  v.  Warner,  1  Doug- 
lass, 384;  Wells  v.  Stevens,  2  Gray,  115; 
Harrington  v.  People,  6  Barbour,  607  ; 
Morse  v.  Presby,  5  Foster,  299. 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  90  6 

action  was  pending,  been  therein  sliown,  the  writ  would  have 
been  quashed. ^ 

§  90.  If  in  the  proceedings  of  a  court  exercising  a  special  and 
limited  jurisdiction  the  facts  which  authorize  its  exercise  ought 
to  appear,  how  must  they  appear  ?  Manifestly,  by  the  record. 
Whatever,  in  such  case,  is  requisite  to  show  that  the  action  of  a 
court  is  coram  judice,  must  necessarily  be  a  part  of  the  record  in 
the  case  in  which  the  jurisdiction  is  exercised.  Hence,  wherever 
in  attachment  cases  the  point  has  been  presented,  it  has  been 
ruled  that  the  affidavit  is  part  of  the  record.^  If  no  affidavit 
appears,  it  was  held,  in  Indiana,  that  no  evidence  —  save,  per- 
haps, in  the  case  of  loss  or  destruction  —  is  admissible  to  prove 
that  one  was  made :  even  a  recital  in  the  writ  to  that  effect  will 
not  prove  the  fact,  nor  sustain  the  proceeding.^  On  the  other 
hand,  in  the  United  States  Circuit  Court  for  Ohio,  in  a  case 
where  an  attachment  proceeding  was  assailed  collaterally,  be- 
cause the  record  showed  no  affidavit,  the  court  said,  it  could  not 
presume  there  was  no  affidavit,  because  none  was  copied  into  the 
record  ;  for  in  making  up  the  record  the  clerk  might  have  omitted 
the  affidavit,  supposing  it  not  to  be  part  thereof.^ 

If  there  be  an  affidavit,  but  not  filed,  the  fact  that  it  was  de- 
livered to  the  officer  before  the  writ  issued,  and  was  the  ground 
of  its  issue,  but  that  he  failed  at  the  time  to  file  it,  may  be  proved 
by  him,  so  as  to  authorize  it  to  be  filed  nunc  pro  tmic.^ 

§  90  a.  The  requirement  of  an  affidavit  to  be  filed  in  the 
clerk's  office,  before  an  attachment  can  issue,  is  sufficiently  met 
by  the  filing  of  a  petition,  sworn  to,  and  containing  the  allega- 
tions required  to  be  made  in  an  affidavit.  The  petition  supplies 
the  place  of,  and  dispenses  with,  a  separate  affidavit.^ 

§  90  b.  Where  the  affidavit  is  made  on  the  same  day  the  writ 

1  "Weber  v.   Weitling,  3  New  Jersey  Yerger,  428 ;  Watt  v.  Carnes,  4  Heiskell, 

Eq.  441.     See  Foster  v.  Higginbotham,  532. 

49  Georgia,  263 ;  Dow  v.  Smitli,  8  Ibid.  ^  Bond  v.  Patterson,  1  Blackford,  34. 

551.  4  Biggs  V.  Blue,  5  McLean,  148. 

^  Stayjles   i\   Faircliild,    3    Comstock,  *  Simpson  v.  Minor,  1  Blackford,  229. 

141 ;  Shivers  v.  Wilson,  5  Harris  &  Jolm-  See  Brash    v.   Wielarsky,    36     Howard 

son,  130;  Ford  i-.  Woodward,  2  Smedes  Pract.  253. 

&    Marshall,   260;    Maples   v.   Tunis,    11  6  geott   v.    Doneghy,    17   B.   Monroe, 

Humphreys,   108;    Conrad  v.   McGee,  9  321;  Shaffer  r.  Sundwall,  33  Iowa,  579. 

[73] 


§  01  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

was  issued,  and  speaks  of  being  annexed  to  the  writ,  the  fact 
tluit  its  hing-nao'e  implies  tliat  it  was  made  after  the  writ,  is  no 
ground  for  impeaching  its  vahdity.  Where  two  acts  are  done  at 
the  same  time,  that  shall  be  considered  to  take  effect  first  which 
ought  in  strictness  to  have  been  done  first  in  order  to  give  it 
effect.^ 

§  90  c.  The  omission  of  the  statement  of  a  venue  in  connection 
with  the  afiidavit  does  not  vitiate  it;  the  venue  being  in  fact  no 
part  of  the  affidavit,  but  merely  intended  to  show  by  an  inspec- 
tion of  the  instrument  whether  it  was  made  within  the  jurisdic- 
tion of  the  officer  who  administered  the  oath.^ 

§  91.  In  practice,  the  first  point  to  be  ascertained  is,  whether, 
in  fact,  an  affidavit  was  made.  There  may  be  in  the  record  what 
was  designed  for,  and  yet  may  not  be,  an  affidavit,  because  not 
properly  authenticated.  The  absence  of  the  party's  signature 
does  not  prove  that  he  was  not  sworn,  for  it  is  not  necessary  to 
constitute  an  affidavit,  unless  required  by  statute,  that  the  party 
making  should  sign  it.-^  It  is  otherwise,  however,  where  there 
is  no  official  authentication  ;  though,  under  some  circumstances, 
that  has  been  supplied  by  implication  from  the  contents  of  the 
record,  and  even  by  parol  proof.  Thus,  where  that  appeared 
among  the  papers,  which  wanted  only  the  signature  of  the  judge 
to  the  jurat,  to  make  it  a  complete  affidavit,  and  across  the  face 
of  the  document  were  written  the  words,  "  sworn  and  subscribed 
before  me,"  in  the  handwriting  of  the  judge,  but  not  signed  by 
him ;  and  immediately  below,  and  on  the  same  paper,  was  writ- 
ten the  order  for  the  attachment  to  issue,  which  was  signed  by 
him ;  and  both  the  unfinished  jurat  and  the  order  bore  the  same 
date  ;  and  the  order  recited  that  the  judge  had  read  the  petition, 
affidavit,  and  the  documents  annexed  ;  it  was  held,  that  he  acted 
on  the  paper  as  an  affidavit  sworn  to  before  himself;  and  in  sign- 
ing the  order  containing  that  expression,  he,  by  the  strongest  im- 
plication, certified  that  it  had  been  sworn  to  before  himself ;  and 
that  the  want  of  his  signature  to  the  jurat  was  no  sufficient 
ground  for  dissolving  the  attachment.*     So,  where  the  affidavit 

1  Hubbardston  L.  Co.  v.  Covert,  35  shall,  579  ;  Bates  v.  Robinson,  8  Iowa,  310. 
Michigan,  254.  Sed  contra,  Cohen  v.  Manco,  28  Georgia, 

2  Struthers  v.  McDowell,  5  Nebraska,     27. 

491.  i  English  v.  Wall,  12  Robinson  (La.), 

3  Redus  V.  WofEord,  4  Smedes  &  Mar-     132.     See  White  v.  Casey,  25  Texas,  552  ; 

[74] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  92 

was  stated  in  the  jurat  to  have  been  sworn  to  before  one  who 
signed  his  name,  without  adding  thereto  any  official  designation, 
but  the  writ  was  signed  by  a  person  in  the  same  name,  as  clerk 
of  the  court  in  which  the  suit  was  brought;  the  court  presumed 
that  the  affidavit  was  sworn  to  before  the  same  officer.^  But 
where  the  papers  do  not  justify  such  an  implication,  the  absence 
of  an  official  attestation  to  the  affidavit  has  been  held  to  be  fatal 
to  it.2  In  Alabama,  however,  in  a  case  of  this  description,  it  was 
considered,  that,  upon  a  motion  to  quash  the  attachment,  every 
thing  disclosed  by  the  proceedings  should  be  taken  to  be  true ; 
that  the  court  would  suppose  the  affidavit  to  have  been  regularly 
taken ;  and  that  if  such  was  not  the  fact,  it  was  to  be  taken  ad- 
vantage of  by  plea  in  abatement,  and  not  by  motion  to  quash.^ 
Afterwards,  in  another  case,  of  identical  character,  the  defendant 
pleaded  in  abatement  the  want  of  the  signature  of  the  officer  ;  to 
which  the  plaintiff  replied  that  the  affidavit  was  in  point  of  fact 
made ;  to  which  replication  the  defendant  demurred ;  and  it  was 
held,  that  the  plea  was  fully  answered  by  the  replication,  and 
that,  though  it  would  have  been  more  regular  for  the  officer  to 
have  certified  the  affidavit,  the  court  were  not  prepared  to  say 
that  his  omission  to  do  so  necessarily  vitiated  the  proceedings.* 
And,  in  Iowa,  where  the  affidavit  was  not  signed  by  the  affiant, 
nor  certified  by  the  clerk  of  the  court,  it  was  not  considered  a 
good  ground  for  quashing  the  writ,  when  the  court  was  satisfied 
from  evidence  that  the  affidavit  was  in  fact  sworn  to  before  the 
writ  issued,  and  that  the  failure  of  the  plaintiff  to  sign  the  affi- 
davit, and  of  the  officer  to  certify  it,  resulted  merely  from  over- 
sight consequent  upon  the  haste  in  which  the  act  was  done.^ 

§  91  a.  If  a  person  holding  the  office  of  clerk  of  a  court  insti- 
tute a  suit  by  attachment  in  that  court,  his  affidavit  cannot  be 
made  before  his  own  deputy.     If  so  made  it  is  a  nullity.^ 

§  92.  The  next  matter  to  be  determined  is,  whether  a  particu- 

Farmers'  Bank  v.  Gettinger,  4  West  Vir-     521  ;  "Watt  v.   Carnes,  4   Heiskell,  532 ; 
ginia,   305:  Cook   v.  Jenkins,   30  Iowa,     Cooper  v.  Smith,  25  Iowa,  269. 
452 ;  Kruse  v.  Wilson,  7',)  Illinois,  233.  3  Lowry  v.  Stowe,  7  Porter,  483. 

•  Singleton  v.    Wofford,  4  Illinois  (3  *  McCartney  v.  Branch  Bank,  3  Ala- 

Scammon),  576.  bama,  709. 

-  Birdsong  v.    McLaren,   8    Georgia,  ^  Stout  v.  Folger,  34  Iowa,  71. 

''  Owens  V.  Johns,  59  Missouri,  89. 
[75] 


§  93  AFFIDAVIT   FOR    ATTACHMENT.  [CHAP.  V. 

Inr  affidavit,  relied  on  to  sustain  the  attachment,  was,  in  fact, 
juadc  in  the  attaehnent  suit.  This  would  seem  to  be  easily  ascer- 
tainable, b}'  the  title  of  the  affidavit,  or  by  its  connection  with 
the  jiapers  in  the  cause ;  but  still  there  are  reported  cases  on  this 
point.  An  affidavit  having  no  title,  not  referring  to  the  summons 
or  any  other  paper  having  the  title,  not  stating  who  the  deponent 
is,  or  what  he  has  to  do  with  the  suit,  or  who  is  plaintiff  or  de- 
fendant, was  held  to  be  too  indefinite  to  be  the  basis  of  an  attach- 
ment.^ But  in  Arkansas,  where  the  affidavit  was  not  entitled  in 
the  suit,  and  did  not  describe  the  person  who  made  it,  as  plain- 
tiff, or  the  debtor  named  in  it  as  defendant,  and  was  not  attached 
to  any  of  tlie  original  papers  in  the  cause,  it  was  considered 
sufficient.^ 


§  93.  There  is  ordinarily  no  difficulty  in  ascertaining  whether 
the  affidavit  was  made  by  one  authorized  by  law  to  make  it ;  for 
the  statutory  terras  are  usually  sufficiently  clear.  Where  the  law 
requires  it  to  be  made  by  the  plaintiff,  and  mentions  no  other 
person  by  whom  it  may  be  made,  the  rule  aj)plied  to  attachment 
bonds  under  like  circumstances,  that  the  act  can  be  done  by  no 
other  than  the  plaintiff,^  would  perhaps  be  established ;  though 
the  Supreme  Court  of  Alabama  refused  to  do  so.*  In  the  nature 
of  things,  however,  such  a  rule  would  be  subject  to  exceptions. 
Thus,  it  has  been  held,  under  such  a  statute,  that  an  affidavit  in 
an  action  by  a  corporation  may  be  made  by  its  agent.^  So,  where 
a  suit  was  brought  by  A.  to  the  use  of  B.,  and  B.'s  agent,  de- 
scribing himself  as  such,  made  the  affidavit,  it  was  considered 
that  this  met  the  terms  of  a  statute  requiring  "  the  party  apply- 
ing for  the  attachment,  his  agent,  attorney,  or  factor,"  to  make 
the  affidavit.^  In  Louisiana,  however,  an  affidavit  made  by  a 
third  person,  not  appearing  to  have  any  knowledge  of  the  matter, 
was  held  bad.'''     If  it  appear,  however,  by  the  record,  that  the 

1  Burgess  v.  Stitt,  12  Howard  Pract.  &  Munford,  308  ;  Pool  v.  Webster,  3  Met^ 
401.  calfe  (Ky.),  278. 

2  Cheadle  v.  Riddle,  6  Arkansas,  480  ;  «  Flake  v.  Day,  22  Alabama,  132. 
Kinney  t'.  Heald,  17  Ibid.  397.    See  Ruthe  5  Trenton  Banking  Co.  v.  Haverstick, 
V.  Green  Bay  &  M.  R.  R.  Co.,  37  Wiscon-  6  Halsted,  171. 

sin,  344.  6  Murray  v.  Cone,  8  Porter,  250. 

3  Post,  §  131 ;  Myers  v.  Lewis,  1  Mc-  7  Baker  v.  Hunt,  1  Martin,  194. 
Mullan,  54 ;  Mantz  v.  Hendley,  2  Hening 

[76] 


CHAP,  v.]  AFFIDAVIT   FOE   ATTACHMENT.  §  94 

affiant  is  a  party  to  the  suit,  it  is  not  necessaiy  for  him  to  make 
in  the  affidavit  an}^  allegation  of  his  interest  therein. ^ 


§  94.  If  a  statute  authorize  an  affidavit  to  be  made  by  the 
plaintiff's  agent  or  attorney,  and  it  be  made  by  a  person  other 
than  the  plaintiff,  he  must  be  described  in  the  affidavit  as  such 
agent  or  attorney,  or  it  will  be  insufficient.  Thus,  where  the 
petition  was  signed  by  ''  F.  &  F.,  attorneys  for  plaintiffs,"  and 
the  affidavit  was  made  by  "  B.  F.  F.,"  without  describing  himself 
as  agent  or  attorney,  the  court  said  it  could  not  know  that  the 
affiant  was  one  of  the  persons  who  signed  the  petition  as  attor- 
neys for  the  plaintiffs,  nor  would  it  look  to  other  parts  of  the 
record  to  find  information  which  ought  to  be  contained  in  the 
affidavit  itself.^  Where  an  affidavit  may  be  made  by  an  attorney, 
that  term  is  not  confined  to  an  attorney  in  fact,  but  includes  an 
attorney  at  law.^  But  in  Louisiana,  it  was  held  not  to  authorize 
an  attorney  at  law,  residing  in  another  State,  and  employed  to 
attend  in  the  State  of  his  residence  to  the  collection  of  a  debt,  to 
come  into  Louisiana,  without  special  authority  from  his  client,  and 
take  out  an  attachment,  making  the  affidavit  himself.^  When  a 
statute  permits  an  affidavit  to  be  made  by  an  agent,  it  is  said  that 
if  he  swear  "to  the  best  of  his  knowledge,"  it  will  be  sufficient.^ 
So,  where  an  attorney  made  affidavit  of  the  nature  and  amount 
of  the  defendant's  indebtedness,  "  upon  information  and  belief 
derived  from  and  founded  upon  the  Avritten  admissions  of  the  de- 
fendant, then  in  the  attorney's  possession,"  it  was  sustained.*^ 
But  where  he  is  required  by  the  statute  to  swear  "to  the  best  of 
his  knowledge  and  belief,"  it  is  not  sufficient  that  he  swear  "  to 
the  best  of  his  belief."  "  And  in  such  case  it  need  not  be  stated 
in  the  affidavit  that  the  affiant  made  it  for  the  plaintiff;  it  will 
be  presumed  that  he  did  so.^  Nor  need  he  swear  that  he  is  an 
agent  or  attorney  of  the  plaintiff,  if  he  so  describe  himself  in  the 
affidavit.^     Nor  need  it  appear  in  the  affidavit  that  he  had  per- 

1  Bosbyshell  v.  Emanuel,  12  Smedes  ^  Bridges  v.  Williams,  1  Martin,  n.  s. 
&  Marshall,  63.  98. 

2  Willis  V.  Lyman,  22  Texas,  268.  See  »  Howell  v.  Kingsbury,  15  Wisconsin, 
Manley  v.  Headlcy,  10  Kansas,  88.  103. 

•'  Clark  V.  Morse,   16  Louisiana,  575 ;  ^  Bergh  v.  Jayne,  7  Martin,  n.  s.  609. 

Austin  V.  LatliuMi,  19  Ibid.  88.  8  Mandel  v.  Peet,  18  Arkansas,  236. 

*  VVetmore  v.  Daffin,  5  Louisiana  An-  9  Wetlierwax  v.   Paine,   2  Michigan, 

nual,  496.  555. 

[77] 


§  95  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

sonal  knowledge  of  the  facts  stated  therein.^  Where  the  statute 
authorized  an  affiihivit  to  be  made  by  an  agent  or  attorney,  if  tlie 
pLaintiff  be  absent  from  the  county,  "  in  tvhich  case  the  affidavit 
shall  state  his  absence,''''  the  omission  of  this  statement  from  an 
aflBdavit  made  by  an  attorney  was  held  to  vitiate  it.^ 

§  94  a.  If  the  law  require  an  averment  in  the  affidavit  of  the 
plaintiff's  knowledge  or  belief  of  the  facts  alleged,  and  a  person 
other  tlian  the  plaintiff  makes  the  affidavit,  it  will  be  insufficient 
if  he  allege  his  own  knowledge  or  belief ;  he  should  allege  that 
of  the  plaintiff.^  Under  such  a  statute  an  affidavit  was  made  by 
an  agent  on  behalf  of  certain  named  individuals,  partners,  trading 
under  the  name  of  A.  T.  S.  &  Co.,  and  alleging  "that  the  said 
A.  T.  S.  &  Co.  have  good  reason  to  believe,"  &c.  ;  and  it  was  ob- 
jected to  because  it  did  not  say  that  the  individuals  composing 
the  firm  "had  good  reason  to  believe,"  &c. ;  but  the  court  over- 
ruled the  objection.^ 

§  95.  In  every  affidavit  for  an  attachment,  there  are  two  dis- 
tinct parts,  one  relating  to  the  plaintiff's  cause  of  action  and  the 
amount  due  from  the  defendant  to  him,  the  other  to  the  facts  re- 
lied on  as  a  ground  for  obtaining  the  writ. 

In  regard  to  the  first,  it  is  as  necessary  to  comply  with  all  the 
requirements  of  the  law,  as  in  reference  to  the  second.  If  the 
law  prescribe  the  terms  in  which  the  plaintiff  shall  allege  his 
claim,  those  terms  must  be  fulfilled,  or  the  attachment  will  fail. 
Thus,  where  the  law  required  the  affidavit  to  show:  1.  The 
nature  of  the  plaintiff's  claim;  2.  That  it  is  just;  and  3.  The 
amount  which  the  affiant  believes  the  plaintiff  ought  to  recover ; 
the  omission  of  the  second  of  those  allegations  was  held  to  be 
fatal.^  So  where  the  statute  required  it  to  appear  by  affidavit 
that  a  cause  of  action  exists  against  the  defendant,  specifying  the 
amount  of  the  same  and  the  grounds  thereof;  and  the  affidavit 
omitted  to  state  the  grounds  ;  it  was  held,  that  there  was  no  juris- 
diction in  the  court  to  issue  the  writ.^     And   under  the  same 

>  White   V.   Stanley,  29   Oliio   State,  ^  Taylor  v.  Smith,  17  B.  Monroe,  536  ; 

423.  Worthington  v.  Gary,  1  Metcalfe  (Ky.), 

2  Pool  V.  Webster  3  Metcalfe  (Ky.),  470;  Allen  v.  Brown,  4  Ibid.  342;  Bailey 

278.  V.  Beadles,  7  Bush,  383. 

^  Dean   v.   Oppenheimer,    25    Mary-  6  2erega  f.  Benoist,  7  Robertson,  199; 

land,  368.  33  Howard  Pnict.  129 ;  Richter  v.  Wise, 

*  Stewart  i,-.  Katz,  30  Maryland,  334.  6  New  York  Supreme  Ct.  70. 
[78] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  95 

statute,  an  attachment  was  set  aside  because  the  affidavit  merely 
recited  the  facts  relied  on  as  a  cause  of  action,  without  a  direct 
statement  of  their  existence.^  But  under  a  statute  requiring  the 
affidavit  to  state  the  nature  of  the  plaintiff's  claim,  it  Avas  con- 
sidered sufficient  to  state  that  the  claim  was  for  a  certain  sum 
"  now  due  and  pa3^able  to  the  plaintiff  from  the  defendants  on  an 
account  for  merchandise  sold  by  the  defendants  as  auctioneers  on 
commission  for  the  plaintiff."  ^  And  so,  under  a  statute  requiring 
the  affidavit  to  state  the  amount  of  the  defendant's  indebtedness, 
"  and  that  the  same  is  due  upon  contract,  express  or  implied," 
an  affidavit  was  sustained,  which  stated  the  amount,  and  "  that 
the  same  is  due  upon  contract,  express  or  implied;"  it  being  con- 
sidered unnecessary  to  specify  the  particular  description  of  con- 
tract sued  upon.3  And  under  that  statute  an  affidavit  was 
sustained  which  omitted  those  words,  but  contained  an  aver- 
ment of  facts,  Avliich,  if  true,  constituted  an  express  contract.* 

It  is  no  objection  to  an  affidavit  that  the  facts  set  forth  in  it 
would  seem  to  show  that  the  plaintiff  might  have  claimed  a  larger 
sum  in  the  suit  than  he  did.^  And  it  is  not  essential  that  the 
amount  should  be  set  forth  in  terms  in  the  affidavit,  if  the  form  of 
pleading  be  such  as  to  require  it  to  be  stated  in  the  petition,  and 
it  be  there  stated,  and  be  referred  to  in  the  affidavit  as  the  sum 
for  which  the  attachment  is  obtained.^  Such,  however,  would 
not  be  the  case  where  the  common-law  forms  of  pleading  are  pre- 
served. But  where  the  cause  of  action  and  the  ground  of  attach- 
ment are  both  required  to  be  set  forth  in  the  petition,  and  the 
affidavit  refers  only  to  the  latter,  the  attachment  cannot  be  sus- 
tained, for  there  is  nothing  showing,  under  oath,  what  amount  is 
due." 

The  following  case  came  up  in  Louisiana,  where  it  is  required 
by  the  Code  of  Practice  that  the  plaintiff  shall  make  a  declaration 
under  oath,  at  the  foot  of  the  petition,  "  stating  the  amount  of  the 
sum  due  him."  The  affidavit  stated  that  the  defendants  were 
indebted  to  the  plaintiff  "  in  a  sum  exceeding  two  thousand  dol- 

1  Manton  v.  Poole,  67  Barbour,  330.  ^  Henrie  v.  Sweasey,  5  Blackford.  273. 

2  Ferguson  v.  Sniitli,  10  Kan.sas,  394.  <>  Boone  v.  Savage,  14  Louisiana,  169; 

3  Klenk   v.   Scliwalni,    10    Wisconsin,  Souberain  y.  Renaux,  0  Louisiana  Annual, 
111.     See   Cope  v.  U.  M.   M.  &  P.  Co.,  1  201;  Morgan  v.  .Johnson,  15  Texas,  568. 
Montana,  53.  '  Blakley  v.  Bird,  12  Iowa,  001 ;  Kelly 

*  Uutlie  V.  Green  Bay  &  M.  R.  R.  Co.,  v.  Donnelly,  29  Ibid.  70  ;  Price  v.  Merritt, 
37  Wisconsin,  344.  13  Louisiana  Annual,  526. 

[79] 


§  95  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

lars  ;  "  and  it  was  decided  that  it  was  specified  with  sufficient 
certainty  that  at  least  that  sum  was  due,  and  tliat  the  attachment 
niig'ht  well  lie  for  that  sum,  and  as  it  did  not  issue  for  a  greater, 
it  could  nt)t  be  dissolved.^  Under  the  same  law,  however,  it  was 
held,  that  where  any  sum  the  phiintiff  might  state  would  be  con- 
jectural, it  could  not  serve  as  the  basis  of  a  positive  oath,  and  an 
attachment  would  not  lie  ;  the  case  being  that  of  one  partner 
suing  another  for  a  specific  amount,  as  a  debt  resultiug  from  the 
partnership  transactions,  when. there  had  been  no  settlement  of 
the  partnership  accounts.^ 

Where  the  law  required  the  affiant  to  state  "that  the  amount 
of  debt  or  sum  demanded  is  actually  due,"  it  w^as  considered,  on 
a  contest  of  the  truth  of  the  affidavit,  not  to  mean  that  the  pre- 
cise amount  stated  was  actuallj^  due,  but  that  the  day  of  payment 
had  arrived  according  to  the  contract ;  and  that,  if  the  amount 
shown  to  be  due  was  sufficient  to  give  the  court  jurisdiction,  the 
attachment  should  not  be  discharged,  unless  the  discrepancy  be- 
tween the  amount  claimed  and  the  amount  proved  was  so  mate- 
rial as  to  warrant  the  imputation  of  fraud  or  bad  faith  on  the  part 
of  the  plaintiff.^ 

Where  the  law  required  the  plaintiff  to  "make  oath  to  the  debt 
or  sum  demanded,  and  that  no  part  of  the  same  is  paid,  and  that 
he  doth  not  in  any  wise,  or  upon  any  account  whatever,  stand  in- 
debted to  the  defendant,"  a  plaiutiff  made  affidavit  to  the  amount 
of  his  claim  and  that  no  part  thereof  was  paid,  and  "  that  he  is 
indebted  to  the  defendant  some  small  amount,  but  he  does  not 
know  how  much,  contracted  since  this  note  was  given ; "  and  it 
was  held  sufficient."^ 

In  Georgia  this  case  is  reported.  The  affidavit  stated  that  the 
defendant  "  was  indebted  to  the  plaintiff  in  the  sum  of  one  thou- 
sand dollars,  which  may  be  subject  to  a  set-off,  for  an  unascer- 
tained sum  which,  on  final  settlement,  will  be  due  the  defendant 
from  plaintiff,  for  certain  improvements,"  &c.  It  was  objected 
that  no  certain  sum  was  sworn  to ;  but  the  court  ruled  otherwise, 
saying :  "  Any  debt  may  be  subject  to  be  set  off  by  another  debt. 
But  until  one  debt  has  been  set  against  another,  both  remain 
debts.     When  there  is  an  action,  there  can  be  no  set-off  until  the 

1  Flower  v.  Griffith,  12  Louisiana,  345.  ^  Levy  v.  Levy,  11  Louisiana,  581. 

Sed  contra,  Jones  v.  Webster,   1  Pinney,  ^  Zinn  v.  Dzialynski,  13  Florida,  597. 

345.  i  Turner  v.  McDaniel,  1  McCord,  552. 

[80] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  96 

defendant  has  done  something  showing  a  willingness  in  him  for 
his  debt  to  be  set  against  the  plaintiff's  debt."  ^  But  in  Wiscon- 
sin, an  affidavit  was  considered  too  vague  and  uncertain,  Avhich 
alleged  that  the  defendant  was  indebted  to  the  plaintiff  "in  the 
sum  of  $282.66,  not  deducting  certain  counter  demands  and  set- 
off claims  against  the  above  claim,  in  favor  of  said  defendant, 
the  exact  amount  of  which  counter  demands  this  affiant  is  not 
knowing."  ^ 

Under  a  statute  requiring  "  an  affidavit,  stating  that  the  defend- 
ant is  indebted  to  the  plaintiff,  and  specifying  the  amount  of  such 
indebtedness  as  near  as  may  be,  over  and  above  all  legal  set-ofPs," 
an  affidavit  was  held  bad,  which  stated  that  the  defendant  was 
indebted  to  the  plaintiff  "  in  the  sum  of  $1,657.90  as  yiear  as  this 
deponent  can  now  estimate  the  same,  over  and  above  all  legal  set- 
offs." The  court  said :  "  The  statute  gives  no  latitude  of  state- 
ment in  the  affidavit  as  to  the  amount  due.  Some  fixed  and 
definite  sum,  to  which  the  affiant  can  positively  depose,  must  be 
named.  In  estimating  the  amount,  so  positively  stated,  the 
utmost  exactness  is  not  required.  It  may  be  a  little  more  or  a 
little  less  than  the  real  amount  without  vitiating  the  proceedings, 
provided  that  the  sum  be  such  that  the  affiant  can  conscientiously 
depose  to  its  correctness.  But  the  amount  named  must  be  cer- 
tain, leaving  no  room  for  speculation  on  the  face  of  the  affida- 
vit."^ Much  more  will  an  affidavit  be  fatally  defective,  which 
wliolly  omits  a  statement  of  the  amount  of  the  defendant's  in- 
debtedness.^ 

§  96.  If  the  statute  do  not  require  it  to  be  stated  how  the  debt 
accrued,  it  is  no  objection  to  the  affidavit  that  it  is  not  stated  ;  ^ 
but  if  required,  a  failure  to  state  it  will  be  futal.^  If  the  affidavit 
make  no  reference  to  the  declaration  or  petition,  as  indicating 
the  cause  of  action,  it  will  be  understood  as  being  the  same 
therein  set  forth  ;  and  if  it  state  that  the  defendant  is  indebted 
in  any  other  manner  than  as  therein  declared,  it  will  be  bad ; 
for  the  debt  sued  on  must  be  the  one  sworn  to.^    Where  a  statute 

1  Ilolston  Man.  Co.  v.  Lea,  18  Geor-  O'Hrien  y.  Daniel,  2  Blackford,  290 ;  Irvin 
gia,  647.  V.  Howard,  37  Georgia,  18. 

2  Morrison  r.  Ream,  1  Pinney,  244.  ^  In  re  IloUingsliead,  6  Wendell,  553 

3  Lathrop  v.    Snyder,    10    Wisconsin,  Smith  v.  Luce,  14  Ibid.  "I'il. 

293.  ^  Cross  v.  Richardson,  2  Martin,  n.  s 

*  Marshall  v.  Alley,  25  Texas,  342.  323. 


*  Starke  v.  Marshall,  3  Alabama,  44 ; 


[81] 


§  08  AFFIDAVIT   FOn   ATTACHMENT.  [CHAP.  V. 

required  tlie  plaintiff  to  state  in  his  affidavit  the  nature  and 
amount  of  the  defendant's  indebtedness,  a  statement  that  the 
defenchmt  was  indebted  "  in  the  sum  of  fourteen  lumdred  dolhirs 
by  his  certain  instrument  of  writing  signed  by  him,"  was  deemed 
sutiicient.^  So,  where  tlie  statute  required  the  affidavit  to  show 
"the  nature  of  the  jihiintiff's  ehiim,"  and  it  averred  "that  said 
defendant  is  justly  indebted  to  said  plaintiff  in  the  sum  of  $803.45, 
a  balance  due  on  account  for  goods  sold  and  delivered ;  "  it  was 
sustained.^ 

§  97.  The  most  important  point  in  the  affidavit  is  that  which 
sets  forth  the  grounds  on  which  the  attachment  is  sued  out ;  and 
it  is  in  reference  to  that,  that  the  great  mass  of  the  decisions  con- 
cerning affidavits  have  been  rendered. 

This  subject  presents  itself,  under  different  statutes,  in  three 
distinct  phases :  I.  Where  the  affidavit  is  required  simply  to  state 
the  existence  of  a  particular  fact,  declared  by  law  to  be  a  ground 
of  attachment ;  II.  Where  the  existence  of  such  fact  must  be 
proved  to  the  satisfaction  of  some  named  officer  ;  and  III.  Where 
the  officer  must  be  satisfied  of  the  existence  of  such  fact,  by  proof 
presented  to  him  of  the  facts  and  circumstances  which  go  to 
establish  its  existence.     Let  us  examine  these  points. 

§  98.  I.  Where  the  affidavit  must  state  simply  the  existence  of  a 
particular  fact^  as  a  ground  of  attachment.  Here,  nothing  is  requi- 
site but  conformity  to  the  language  of  the  statute.  The  affidavit, 
as  we  shall  presently  see,  need  not  be  literally  according  to  the 
words  of  the  law  ;  a  substantial  compliance  is  sufficient.^  The 
officer  whose  duty  it  is  to  issue  the  writ,  inquires  only  whether 
there  is  this  conformity.  If  he  finds  it  to  exist,  he  issues  the  writ 
in  a  ministerial,  not  in  a  judicial,  capacity.  He  is  not  to  be  satis- 
fied judicially  that  the  alleged  fact  is  true  ;  but  is  simply  to  see 
whether  it  is  sworn  to.  If  sworn  to,  he  is  fully  justified  in  issuing 
the  process,  and  cannot  be  affected  by  any  subsequent  ascertain- 
ment of  the  groundlessness  or  falsity  of  the  affidavit.^ 

1  Plielps  V  Young,  1  Illinois  (Breese),  facts  necessary  to  establish  the  ultimate 
255;  Haywood  u.  McCrory,  33  Ibid.  459.       facts  req  lired  by  statute  to  be  shown  as 

2  Tlieirman  v.  Vahle,  32  Indiana,  400.  the  basis  of  the  writ,  is  not  well  taken. 
^  Post,  §  107.  Under  our  statute  it  is  the  duty  of  the 
*  In  Wiieeler  r.  Farmer,  38  California,     clerk   of  the  court   in  which    the  suit  is 

203,  the  court  said  :  "  The  objection  that     commenced,  to  issue  the  writ  upon   the 
the  affidavit  does  not  state  the  probative     filing  by  the  plaintiff  of  an  affidavit  stat- 
[82] 


CHAP,  v.]  AFFIDAVIT   FOR    ATTACHMENT.  §   99 

In  cases  of  this  description  the  statntes  of  some  States  require 
the  affidavit  to  allege  that  the  affiant  "  has  good  reason  to  believe 
and  does  believe  "  the  existence  of  the  fact  alleged  as  a  ground 
for  the  attachment ;  and  there  an  allegation  in  those  words  would 
be  sufficient.  But  in  other  States  an  affidavit  is  required  "  show- 
ing "  the  existence  of  a  statutory  ground.  In  such  case,  it  is 
considered,  in  Ohio,  that  the  averment  of  the  affiant's  belief  of  its 
existence,  unaccompanied  with  any  statement  of  facts  on  which 
the  belief  is  founded,  does  not  allege  that  existence,  and  is  not  a 
compliance  with  the  law,^ 

§  99.  II.  Whej-e  the  existence  of  the  ground  of  attachment  must  he 
proved  to  the  satisfaction  of  the  officer.  In  this  case,  the  officer  acts 
in  a  judicial,  as  well  as  a  ministerial  capacity.  His  judgment 
must  be  satisfied  that  the  fact  exists,  before  he  issues  the  writ ; 
and  if  it  nowhere  appears  that  he  was  so  satisfied,  the  attachment 
may  be  quashed.^  And  where  the  statute  required  him  to  indorse 
on  the  affidavit  that  he  was  so  satisfied,  such  indorsement  was 
considered  an  indispensable  prerequisite  to  the  issuing  of  the 
writ,  and  that  the  officer  could  not  be  permitted  to  come  into 
court,  pending  the  suit,  and  indorse  his  satisfaction  nunc  pro  tunc? 
In  every  such  case  evidence  must  be  presented  to,  and  acted  on 
by,  the  officer.  He  cannot  act  upon  his  own  knowledge,  or  mere 
belief,  however  well  founded  it  may  be,  nor  upon  report  or  infor- 
mation. If  proof  be  presented  to  him,  a  mere  error  in  judgment 
as  to  its  legality  or  sufficiency  will  impose  no  liability  on  him ; 
but  there  must  be  some  proof.  If  he  issues  the  writ  without  proof, 
he  is  liable  to  the  defendant  as  a  trespasser.*  If  the  proof  has  a 
legal  tendency  to  make  out  the  case  required  by  the  statute, 
although  it  be  so  slight  and  inconclusive  that,  upon  a  direct  pro- 
ceeding to  review  it,  the  officer's  action  in  granting  the  writ 
would  be  reversed,  yet  in  a  collateral  action  the  process  will  be 

ing  the  ultimate  facts  in  the  language  of  Ellison  v.  Tallon,  2  Nebraska,   14;  Ilar- 

tiie  statute,  togetiier  with  an  undertaking,  rison  r.  King,  9  Ohio  State,  388;  Coston 

in  amount  and  form  as  defined  by  statute,  v.  Paige,  Ibid.  397;  Mayhew  v.  Dudley,! 

Upon  such  compliance  with  the  statute,  Pinney,  95. 

the  i»laintifE  demands  as  a  riglit  the  issu-  '  Dunlevy  v.  Schartz,  17  Ohio  State, 

ance  of  the  writ,  and,  in  issuing  tlie  writ,  G40  ;  (iarner  v.  White,  23  Ibid.  192. 

the   clerk    has    no   discretionary  power.  -  Mayhew  v.   Dudley,   1  Pinney,  95; 

He  but  performs   a   ministerial  duty  in  Morrison  v.  Fake,  Ibid.  13:J. 

obedience  to  a  plain  statutory  mandate-"  3  Slaughter  r.  Revans,  1  Pinney,  348. 

See  Key  burn  r.  Brackett,  2  Kansas,  227  ;  *  Vosburgh  i\  Welch,  11  Johnson,  175. 


Ferris  v.   Carlton,   8    Philadelphia,   549 ; 


[83] 


§  100  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

deemed  valid.  It  M-ill  be  so  deemed  because  the  officer,  having 
proof  presented  to  him,  and  being  required  by  law  to  determine 
upon  the  weight  of  the  proof,  has  acted  judicially  in  making 
his  determination.  His  decision  may  be  erroneous,  but  is  not 
void.' 

Tlie  first  point,  then,  to  be  determined  is,  what  is  competent 
evidence  to  present  to  the  officer?  It  must  be  legal  evidence; 
not  the  plaintiffs  own  oath,  unless  the  statute  expressly  say  so.^ 

The  next  point  is,  what  is  sufficient  proof?  The  Supreme 
Court  of  New  York  sustained  an  attachment  issued  by  a  justice 
of  the  peace,  upon  affidavits  made  by  witnesses  that  they  believed 
the  defendant  resided  out  of  the  State.^  The  legislature  of  that 
State  afterwards  modified  the  statute,  so  as  to  prevent  the  issue 
of  attachments  on  the  ground  of  mere  belief;  but  Cowen,  J., 
after  the  change,  upon  a  review  of  the  authorities  in  similar  cases 
in  other  branches  of  the  law,  said  that  under  the  previous  statute, 
—  the  same  which  was  construed  in  the  decision  of  the  Supreme 
Court  just  referred  to,  —  he  should  not  hesitate  in  receiving  the 
oath  of  mere  belief.* 

§  100.  III.  Where  the  officer  must  be  satisfied  of  the  existence  of 
the  ground  of  attachment^  by  proof  of  particular  facts  and  circum- 
stances tending  to  establish  its  existence.  In  this  case,  as  in  the 
last,  the  officer  acts  both  judicially  and  ministerially.  He  passes 
judicially  upon  the  competency  of  the  evidence,  and  also  upon 
the  sufficiency  of  the  proof  to  establish  the  existence  of  the 
ground  of  attachment.  For  instance,  if  the  statute  authorize  an 
attachment  "  whenever  it  shall  satisfactoril}^  appear  to  the  officer 
that  the  defendant  is  about  to  remove  from  the  county  any  of 
his  property,  with  intent  to  defraud  his  creditors,"  and  require 
nothing  more,  it  would  be  a  case  of  the  description  mentioned 
under  the  next  preceding  head  ;  and  under  the  views  expressed 
by  the  New  York  court,  an  affidavit  of  belief  would  be  sustained, 
if  the  officer  acted  upon  it  as  sufficient :  but  if  the  statute  fur- 
ther require  that,  before  the  attachment  shall  issue,  "  the  plaintiff 
shall  prove  to  the  satisfaction  of  the  officer  the  facts  and  circum- 
stances  to  entitle  him  to  the  same,"  then  a  new  exigency  is  cre- 

1  Skinnion  v.  Kelley,  18   New  York,  3  Matter  of  Fitch,  2  Wendell,  298. 

355  ;  Hall  v.  Striker,  27  Ibid.  696.  *  Ex  parte  Haynes,  18  Wendell,  611. 

-  Brown  v.  Hinclunan,  9  Johnson,  75. 
[84] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  100 

ated,  requiring  evidence,  which  he  shall  deem  competent,  to  be 
given  of  those  facts  and  circumstances ;  and  that  the  facts  and 
circumstances,  when  proved,  shall  satisfy  him  that  the  particular 
ground  of  attachment  relied  on  exists.  Hence,  though  the  facts 
and  circumstances  he  proved  by  competent  evidence,  if  they  do 
not  in  his  judgment  prove  the  main  fact,  he  should  not  issue  the 
writ ;  and  if  he  do  issue  it,  his  action  is  liable  to  be  revised  and 
overruled,  either  on  tlie  ground  that  tlie  evidence  submitted  to 
him  was  incompetent,  or  that  it  was  insufficient.  And  when  his 
jurisdiction  to  issue  the  writ  is  in  question,  the  point  is  not 
whet!ier  there  was  before  him  conclusive  evidence  of  the  facts 
relied  on,  but  it  is  sufficient  if  the  proof  had  a  legal  tendency  to 
make  out  in  all  its  parts  a  case  for  issuing  the  writ.  In  order  to 
defeat  his  jurisdiction  it  must  be  made  to  appear  that  there  is  a 
total  want  of  evidence  upon  some  essential  point. ^ 

In  reference  to  the  affidavit  in  such  a  case,  it  has  been  decided, 
that  the  belief  of  the  affiant  that  the  defendant  was  about  to  do  a 
particular  act,  the  impending  performance  of  which  would  au- 
thorize an  attachment,  would  not  sustain  an  attachment.  "  The 
plaintiif's  own  belief,"  said  the  court,  "  is  neither  a  fact  nor  a 
circumstance  upon  which  the  justice  can  exercise  his  judgment. 
It  is  not  sufficient  that  the  plaintiff  is  satisfied  of  the  unlawful 
acts  or  intentions  of  the  defendant.  The  justice  must  be  satis- 
fied, and  he  must  be  so  satisfied  from  proof  of  facts  and  circum- 
stances ;  not  the  belief  of  any  one."  ^  It  has  likewise  been  held, 
that  an  affidavit  stating  the  information  and  belief  of  the  party 
making  it,  as  to  certain  facts,  is  not  sufficient  proof  to  authorize 
the  writ  to  issue.^  And  though  the  affidavit  was  unqualified  in 
its  terms  that  the  defendant  had  left  the  State  with  intent  to  de- 
fraud his  creditors,  it  was  held  insufficient,  because  it  did  not 
state  the  facts  and  circumstances.  The  court  said :  "  Affirming 
that  a  party  has  left  the  State  with  intent  to  defraud  liis  credit- 
ors, may  be  predicated  more  upon  matters  of  opinion,  or  belief, 
than  upon  fact.  The  affirmant  may  lionestly  believe,  and  thus 
affirm  it  in  general  terms ;  whereas,  if  called  to  state  the  facts 

^  Sclioonmaker   v.   Spencer,  54   New  ^  Tallman   v.    Bigelow,    10   Wemlell, 

York,  366.  420;    Ex  parte    Haynes,    18    Ibid.   611; 

i  Smith   V.   Luce,    14    Wendell,    237;  Matter  of  Faulkner,  4  Hill  (N.  Y.),  598 ; 

Mott   V.    Lawrence,    17    Howard    Pract.  Matter  of  Bliss,  7  Ibid.    187 ;    Pierse    v. 

55'.) ;  Lorrain  t'.  Higgins,  2  Chandler,  116;  Smith,    1    Minnesota,    82;    Morrison    v. 

2  Pinney,  454.  Lovejoy,  6  Ibid.  183. 

[85] 


§  101  AFFIDAVIT    FOR    ATTACHMENT.  [CHAP  V. 

and  cireuinstances  upon  wliioli  he  readied  the  conclusion,  the 
officer  (l)eing  unable  to  exercise  his  judgment  in  the  matter) 
might  well  differ  from  him."  ^  But  wliere  the  matter  to  be 
proved  is  in  itself  a  single  and  complete  fact,  not  depending  on 
other  facts  and  circumstances  to  establish  its  existence,  an  affirm- 
ation of  the  fact  in  direct  terms  is  sufficient.  Such  is  the  case 
where  the  non-residence  of  the  defendant  is  the  ground  of  attach- 
ment. There,  no  "  facts  and  circumstances  "  are  needed  to  prove 
the  non-residence:  itself  is  the  fact  and  circumstance.^  But  in 
such  case  of  a  single  fact,  no  more  than  in  any  other,  is  the  affi- 
davit of  belief  competent  proof.^ 

While,  however,  it  is  not  sufficient  for  an  affidavit  to  state  facts 
merely  upon  the  information  and  belief  of  the  party,  yet  inform- 
ation is  not  to  be  entirely  rejected  as  evidence.  Thus,  where  the 
allegation  is,  that  the  debtor  has  absented  himself  from  his  resi- 
dence in  an  illegal  manner,  information  obtained  from  his  family, 
on  inquiry  at  his  residence,  may  be  admitted,  in  connection  with 
other  facts,  to  show  that  he  has  left  liome  ;  when  he  went  away  ; 
where,  and  u]3on  what  business  he  went,  and  how  long  he  in- 
tended to  be  absent.  But  such  evidence,  obtained  from  other 
sources,  would  not  be  admissible.  The  informant  should  be 
called.  It  may  be,  too,  that  the  party  making  the  affidavit  should 
be  allowed  to  speak  upon  information  concerning  the  solvency  of 
the  debtor,  provided  the  information  come  from  persons  who  are  not 
interested  in  the  proceedings  against  him.  But  an  affidavit  that 
the  I3arty  has  been  informed  and  believes  that  the  debtor  is  in- 
solvent, that  he  owes  a  large  amount  of  money,  or  the  like,  with- 
out the  addition  of  any  fact  within  the  knowledge  of  the  party, 
or  stating  when  or  from  whom  the  intelligence  was  received,  can- 
not be  regarded  as  of  any  legal  importance.'^  But  where,  in  any 
case,  information  is  allowed  to  be  stated  in  the  affidavit,  it  will 
be  of  no  value,  unless  the  party  swear  that  he  believes  it  to  be 
true.° 

§  101.  Usually  the  plaintiff  may  allege  as  many  grounds  of  at- 
tachment, within  the  terms  of  the  law,  as  he  may  deem  expedient.^ 
In  doing  so,  the  several  grounds  should  be  stated  cumulatively; 

1  Ex  parte  Kobinsnii,  21  Wendell,  672.  *  Matter  of  Bliss,  7  Hill  (N.  Y.),  187. 

2  Matter  of  Brown,  21  Wemlell,  816.  ^  Decker  v.  Bryant,  7  Barbour,  182. 

3  Kingsland  y.  Cowman,  5  Hill  (N.  Y.),  ^  Kennon  v.  Kvans,  36  Georgia,  89; 
e08.  Irvin  v.  Howard,  37  Ibid.  18. 

[86] 


CHAP,  v.]  AFFroAVIT    FOR   ATTACHMENT.  §  102 

and  if  any  one  of  them  be  true,  it  will  sustain  the  attachment, 
though  all  the  others  be  untrue.^  An  affidavit  alleging  one  or 
the  otlier  of  two  or  more  distinct  grounds,  would  be  bad,  because 
of  the  impossibility  of  determining  which  is  relied  on  to  sustain 
the  attachment.  Thus,  under  a  statute  which  authorized  an 
attachment  —  1.  Where  the  defendant  is  about  to  remove  his 
effects  ;  2.  Where  he  is  about  to  remove  privately  out  of  the 
county  ;  and  3.  When  he  absconds  or  conceals  himself,  so  that 
the  ordinar}^  process  of  law  cannot  be  served  on  him  —  an  attach- 
ment was  obtained,  on  an  affidavit  that  the  defendant  "  was 
about  to  remove  from  and  without  the  limits,  or  so  absconds  and 
conceals  himself,  that  the  ordinary  process  of  law  cannot  be 
served  on  him  ;  "  and  it  was  set  aside.  The  first  member  of  the 
oath  was  plainly  not  within  the  statute,  and  though  the  latter 
was,  yet  it  was  rendered  inefficient  by  its  connection  with  the 
former,  through  the  disjunctive  conjunction  or,  whereby  it  became 
uncertain  which  state  of  facts  existed.^  Subsequently  the  same 
court,  in  a  similar  case,  so  ruled  again,  and  intimated  that  they 
would  consider  an  affidavit,  in  the  disjunctive,  as  bad,  although 
either  of  the  facts  sworn  to  might  be  sufficient.^ 

§  102.  Let  it  be  observed,  however,  that  where  the  disjunctive 
or  is  used,  not  to  connect  two  distinct  facts  of  different  natures, 
but  to  characterize  and  include  two  or  more  phases  of  the  same 
fact,  attended  with  the  same  results,  the  construction  just  men- 
tioned would  be  inapplicable.  For  instance,  where  the  statute 
authorized  an  attachment  when  "  the  defendant  absconds,  or 
secretes  himself,"  it  was  considered  that,  from  the  difficulty  of 
determining  which  was  the  fact,  the  language  comprised  but  one 
ground,  and  the  disjunctive  or  did  not  render  the  affidavit  uncer- 

1  McCollem  17.  White,  23  Indiana,  43.  Jewel   v.   Howe,  3  Watts,   144;  Wray  y. 

2  Ha>fO()d  V.  Hunter,  1  JMcCnrd,  511.  Gilmore,  1  Miles,  75;  Sliipp  i'.  Davis, 
See  Barnard  v.  Sebre,  2  A.  K.  Marshall,  Hardin,  65 ;  Havvley  v.  Dehiias,  4  Caii- 
151;  Davis  v.  Edwards,  Hardin,  342;  fornia,  195;  Rogers  v.  Ellis,  1  Handy, 
Bisliop  V.  I'ennerty,  46  Mississippi,  570;  48;  1  Disney,  1;  People  v.  Recorder,  6 
Dickenson  ;;.  Cowley,  15  Kansas,  209.  Hill  (N.  Y.),  429;  Stacy  v.  Siichton,  9 
Recent  decisions  of  tlie  Court  of  Appeals  Iowa,  399;  Hopkins  v.  Nichols,  22  Texas, 
of  Kentucky  hold  that  a  statement  in  the  200  ;  Garner  v.  Burleson,  20  Ihid.  348 ; 
alternative  of  two  j^rounds  of  attacliment  Culbertson  v.  Cabeen,  29  Ibid.  247;  Guile 
is  not  vicious.  Wood  v.  Wells,  2  Bush,  v.  McNanny,  14  Minnesota,  520  ;  Morri- 
197 ;  Hardy  v.  Trabue,  4  lljid.  044.  son  v.  Fake,  1  Pinney,  133. 


>*  Devall    V.    Taylor,  Cheves,  5.     See 


[87] 


§  102  AFFIDAVIT   FOR    ATTACHMENT.  [CHAP.  V. 

tain.^  "  It  is,"  said  the  court,  "  often  difficult,  if  not  imprac- 
ticable, for  the  creditor  to  ascertain  whether  his  debtor  absconds 
or  secretes  himself:  lie  has  to  rely  frequently  upon  such  infor- 
mation as  his  family  or  friends  will  iL;ive  him,  which  cannot  always 
be  confided  in  :  hence,  to  allow  sufficient  latitude  to  the  creditor 
in  making  his  affidavit,  and  to  prevent  failures,  from  having  mis- 
taken the  cause  why  the  debtor  is  liable  to  the  remedy,  the  law 
lias  very  properly  provided  for  its  issuance  in  the  alternative."  ^ 

Under  a  similar  statute,  the  same  view  has  been  expressed  in 
Tennessee.  The  language  of  the  statute  was,  "  so  absconds  or 
conceals  himself  that  the  ordinary  process  of  law  cannot  be 
served  on  him."  It  was  contended  that  "absconds"  constituted 
one  cause,  and  "  conceals "  another ;  but  the  court  did  not  so 
hold.  "  For,"  said  the  court,  "  although  the  two  words  are  con- 
nected by  or  instead  of  and^  yet  the  sense  of  the  sentence  shows 
that  or  is  used  copulatively,  constituting  both  '  absconds '  and 
'  conceals,'  or  either  of  them,  a  sufficient  cause  for  suing  out  the 
attachment.  In  the  nature  of  things,  a  plaintiff  cannot  tell 
whether  a  party  absconds  or  conceals  himself.  He  may  suppose 
he  absconds,  when  he  only  conceals  himself,  and  vice  versa.  To 
compel  him  to  swear  that  the  party  is  doing  the  one  only,  would 
involve  the  plaintiff  in  endless  difficulty.  Besides  the  question 
of  conscience  that  must  always  exist  with  the  party  about  to 
take  the  oath,  he  would  be  constantly  in  danger  of  having  his 
attachment  abated  on  the  plea  of  the  defendant,  who,  though  he 
might  not  have  absconded,  was  nevertheless  concealed,  or,  if  not 
concealing  himself,  may  have  been  absconding.  We  think,  there- 
fore, that  the  words  '  so  absconds  or  conceals  himself '  constitute 
but  one  cause."  ^  And  so,  in  Mississippi,  under  a  statute  allow- 
ing attachment,  on  affidavit  that  the  defendant  "  hath  removed, 
or  is  removing  out  of  the  State,  or  so  absconds,  or  privately  con- 
ceals himself,  that  the  ordinary  process  of  law  cannot  be  served 
on  him."  The  affidavit  was  in  the  very  words  of  the  statute, 
and  was  objected  to,  because  in  the  alternative ;  but  the  court 
held  it  sufficient ;  considering  that  the  material  point  required 
by  the  statute  was,  that  the  ordinary  process  could  not  be  served, 

'  Jolinson  V.  Hale,  3  Stewart  &  Porter,  See  Goss  v.  Gowing,  5  Kichardson,  477  ; 

331.  Commercial  Bank  v.  UUman,  10  Smedes 

2  Cannon  v.  Logan,  5  Porter,  77.     See  &  Marsliall,  411;  Hopkins  v.  Nichols,  22 

Wood  V.  Wells,  2  Busli,  197.  Texas,  206. 

8  Conrad   v.   McGee,   9   Yerger,  428. 
[88] 


CHAP,  v.]  AFFIDAVIT   FOR    ATTACHMENT.  §  103 

and  that  the  plaintiff  might  well  know  that,  without  knowing 
whether  the  defendant  had  removed,  absconded,  or  concealed 
himself.^  And  in  New  York,  an  affidavit  that  the  defendant 
"  had  secretl}'-  departed  from  this  State,  with  intent  to  defraud 
his  creditors,  or  to  avoid  the  service  of  civil  process,  or  keeps 
himself  concealed  therein  with  the  like  intent,"  was  sustained.^ 
And  in  Wisconsin  an  affidavit  was  considered  good,  which  alleged 
that  the  defendant  "  has  assigned,  disposed  of,  or  concealed,  or  is 
about  to  assign,  dispose  of,  or  conceal,  his  property,  with  intent 
to  defraud  his  creditors."  ^  And  so  in  Indiana,  where  the  affi- 
davit was  that  the  defendant  "  is  about  to  sell,  convey,  or  other- 
wise dispose  of  his  property  subject  to  execution,  with  the 
fraudulent  intent  to  cheat,  hinder,  or  delay  his  creditors."  *  And 
in  Colorado  an  affidavit  was  sustained,  which  averred,  in  the 
words  of  the  statute,  that  the  defendant  "is  converting,  or  is 
about  to  convert,  his  property  into  money,  or  is  otherwise  about 
to  dispose  of  his  property,  Avith  the  intent  of  placing  it  beyond 
the  reach  of  the  plaintiff."  ^ 

But  in  Texas,  an  affidavit,  in  the  words  of  the  statute,  that 
the  defendant  was  "  about  to  transfer  or  secrete,  or  has  trans- 
ferred or  secreted,  his  property,"  was  considered  bad,  because 
"  to  transfer  property,  within  the  meaning  of  the  statute,  is  to 
place  it  in  the  hands  of  another,  under  pretence  of  title  ;  "  while 
"  to  secrete  property,  within  the  meaning  of  the  statute,  is  to 
hide  it,  to  put  it  where  the  officer  of  the  law  will  not  probably 
be  able  to  find  it ; "  and  the  court,  therefore,  did  not  regard  the 
two  acts  as  phases  of  the  same  general  fact.^  And  so  of  an  affi- 
davit alleging,  under  the  same  statute,  that  the  defendant  was 
"  about  to  transfer  or  dispose  of,  or  has  transferred  or  disposed  of 
his  property." " 

§  103.  While  it  is  ever  a  safe  rule  to  follow  strictly  the  lan- 
guage of  the  statute,  it  is  not  always  necessary.  Qualifying 
words  should  not  be  omitted  ;  but  the  omission  of  words  which 

1  Bosbysliell  v.  Emanuel,  12  Smcdcs  *  Parsons  v.  Stockbridge,  42  Indiana, 
&  Marsliall,  03.     See  Irvin  v.  Howard,  37     121. 

Georgia,  18.  «  McCraw  v.  Welch,  2  Colorado,  284. 

2  Van  Alstyne  V.  Erwine,  1  Kernan,  ^  Hopkins  v.  Nichols,  22  Texas,  206; 
331.  Garner  v.  Burleson,  20  Ibid.   348;    Cul- 

3  Kienk   v.    Schwahn,  19   Wisconsin,  bertson  v.  Cabeen,  29  Ibid.  247. 

Ill;  Morrison  v.  Fake,  1  Pinney,  133.  ">    Carpenter  v.  Pridgen,  40  Texas,  32. 

[89] 


§  103  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

have  not  that  character,  while,  by  those  remaining,  the  sense  and 
scope  of  the  hiw  are  fulfilled,  will  not  vitiate  the  affidavit.  Thus, 
Mhore  it  was  required  that  the  affidavit  should  state  that  the 
defendant  is  "justly  indebted  "  to  the  plaintiff,  it  was  consid- 
ered that  "justly"  was  not  intended  to  qualify  "  indebted,"  and 
that  its  omission  from  the  affidavit  was  no  material  defect.^  So, 
where  the  statute  required  the  affidavit  to  state  that  the  plain- 
tiff's claim  "  is  just,"  it  was  considered  to  be  a  substantial  com- 
pliance with  the  law  to  state  that  "  the  plaintiff  is  justly  entitled 
to  recover."  ^  And  so,  where  the  law  required  affidavit  that  the 
debt  or  demand  "is  a  just  claim,"  and  this  was  omitted,  but  the 
amount  of  the  debt  was  stated,  and  that  it  was  on  the  defend- 
ant's note  under  seal,  promising  to  pay  a  certain  sura  at  a  certain 
time  ;  it  was  held  by  the  Supreme  Court  of  the  United  States 
that  the  attachment  could  not,  for  this  omission,  be  set  aside  in  a 
collateral  proceeding.^  So,  where  the  statute  required  the  affidavit 
to  state  that  the  defendant  "  is  in  some  manner  about  to  dispose 
of  his  property  with  intent  to  defraud  liis  creditors,"  it  was  held 
that  the  omission  of  the  words  "  in  some  manner  "  did  not  vitiate 
the  affidavit.^  So,  under  a  statute  requiring  an  affidavit  that  the 
defendant  is  justly  indebted  to  the  plaintiff  "  in  a  sum  exceeding 
fifty  dollars,"  and  that  the  sum  should  be  specified,  a  statement 
of  the  defendant's  indebtedness  in  the  sum  of  $300  was  held 
sufficient,  without  inserting  the  words,  "  in  a  sum  exceeding  the 
sum  of  fifty  dollars."  ^  So,  under  a  statute  requiring  the  affida- 
vit to  state  "  that  the  defendant  is  indebted  to  the  plaintiff,  and 
specifying  the  amount  of  such  indebtedness,  as  near  as  may  be, 
over  and  above  all  legal  set-offs,"  an  affidavit  stating  indebted- 
ness in  a  given  sum  over  and  above  all  legal  set-offs,  but  omitting 
the  words  "  as  near  as  may  be,"  was  sustained.^  Under  a  stat- 
ute requiring  the  affidavit  to  state  that  the  indebtedness  sworn  to 
"  is  due  upon  contract  express  or  implied,"  it  was  held  in  Wis- 
consin, that  the  word  due  was  intended,  not  only  to  show  that 
the  demand  arose  upon  contract,  but  also  to  indicate  that  the 
time  for  the   payment  of  the  debt  had  arrived  ;  and  that  the 

1  Livengood    v.    Sliavv,    10    Missouri,  ^  Ludlow  v.  Ramsey,  11  Wallace,  581. 
273.    See  Kennedy  v.  Morrison,  31  Texas,          *  Drake  v.  Hager,  10  Iowa,  556. 

207.     Sed  contra,  Tliompson  v.  Towson,  1  ^  Hughes  v.  Martin,  1  Arkansas,  386; 

Harris  &  McIIenry,  501.  Huglies  v.  Stinnett,  9  Ibid.  211. 

2  Gutman  v.  Virginia  Iron  Co.,  5  West  ^  Grover  v.  Buck,  31;  Michigan,  519. 
Virginia,  22. 

[90] 


CHAP,  v.]  AFFIDAVIT    FOR   ATTACHISIENT.  §  104 

omission  to  aver  that  the  debt  was  "  due  upon  contract "  was 
fatal,  though  from  the  terms  of  the  ajBSdavit  it  was  very  clear 
that  it  arose  from  contract.^  This  position  was,  however,  after- 
wards abandoned,  and  it  was  held,  that  an  averment  that  the 
defendant  "is  indebted"  to  the  plaintiff  was  a  sufficient  affidavit 
that  the  debt  was  clue? 

§  104.  Uncertainty  in  the  affidavit  will  vitiate  it.  Thus,  where 
the  law  required  the  affidavit  to  show  that  the  cause  of  action 
was  founded  on  contract,  and  the  plaintiff  did  not  swear  posi- 
tivel}'  to  a  contract,  but  stated  facts,  from  which  perhaps  a  jury 
might  infer  a  contract,  and  perhaps  not ;  the  affidavit  was  held 
insufficient.^  And  where  an  affidavit  stated  that  the  defendant 
"is  justly  indebted  to  plaintiff  (in  a  specified  sum)  for  services 
rendered  and  to  be  rendered  by  deponent,  as  clerk,  part  due,  and 
a  part  of  said  sum  not  due ; "  it  was  considered  defective,  for  un- 
certainty as  to  what  was  in  fact  due.*  So,  an  affidavit  in  the 
following  terms  was  ruled  out  for  uncertaint}^ :  "  A.,  plaintiff, 
states  that  B.,  the  defendant,  is  bond  fide  indebted  to  him  in  the 
sum  of  82,053.37  over  and  above  all  discounts,  and  the  said  A., 
at  the  same  time,  produces  the  account  current  which  is  hereunto 
annexed,  by  which  the  said  B.  is  so  indebted  ;  and  the  said  A. 
likewise  states  that  he  hath  drawn  on  the  said  B.  for  the  sum  of 
il,500,  and  also  for  the  sum  of  $2,223.10,  which  drafts,  though 
not  due,  the  said  A.  understands  from  the  said  B.,  and  verily 
believes,  will  not  be  paid,  and  further,  that  the  latter  draft  for 
$2,223.10  hath  never  been  accepted  by  the  said  B.,  and  the  said 
A.  hath  therefore  allowed  no  credit  or  discount  for  said  drafts. 
He  further  states  that  B.  informed  him  some  time  ago,  that 
he  would  be  entitled  to  charge  against  said  A.'s  account,  for 
some  loss  that  he  expected  would  accrue  in  the  sale  of  certain 
flour  on  their  joint  account ;  no  account  has  been  exhibited  stat- 
ing the  amount  of  such  loss,  and  therefore  he  hath  allowed  said 
B.,  in  stating  his  account,  no  credit."  ^  So,  under  a  statute  au- 
thorizing an  attachment  where  the  debtor  "is  about  fraudulently 

1  Boweny.  Slocum,-17  Wisconsin,  181.      Cbandler,  29;  2  Pinney,  97.     See  Rob- 
■^  Trowbridge  v.  Sickler,  42  Wiscon-     inson  v.  Burton,  5  Kiinsas,  293. 
sin,  417.  *  Friedlander  v.   Myers,   2  Louisiana 

^  Jacoby    V.    Gogell,    5    Sergeant    &     Annual,  920. 
Rawle,    450;    Quarles    v.    Robinson,    1  ^  Munroe  v.   Cocke,  2  Cranch  C.  C. 

465. 

[91] 


i> 


§  105  a  AFFIDAVIT    FOR    ATTACHMENT.  [CHAP.  V. 

to  remove,  convey,  or  dispose  of  lils  property  or  effects,  so  as  to 
liinder  or  delay  his  creditor,"  an  affidavit  was  held  vicious  for 
uncertainty,  which  averred  that  the  plaintiff  "  lias  good  reason 
to  believe,  and  does  believe,  that  the  defendant  is  about  fraudu- 
lently to  remove  his  propert}',  convey  or  dispose  of  the  same,  so 
as  to  hinder  or  delay  this  deponent."  ^ 

§  104  a.  The  leaving  of  a  blank  in  the  part  of  an  affidavit 
M-hich  was  intended  to  state  the  ground  of  attachment,  so  that 
thereby  the  fact  is  not  alleged,  —  as,  for  instance,  where  the  affi- 
davit reads,  "  and  the  said  .  .  .  resides  without  the  limits  of  this 
State,"  —  is  fatal  to  the  attachment.^ 

§  105.  Surplusage  in  an  affidavit,  not  inconsistent  with  the 
substantial  averment  required  by  statute,  wull  not  vitiate  it. 
Thus,  where  the  person  making  the  affidavit  stated  sundry  acts 
of  tlie  defendant,  and  closed  with  these  words  :  "  affiant  further 
saith  he  believes  the  facts  above  stated  are  true,  and  that  said 
defendant  is,  by  the  means  above  stated,  concealing  his  effects  so 
that  the  claims  aforesaid  will  be  defeated  at  the  ordinary  course 
of  law;"  which  averment  was  in  compliance  with  the  law;  it 
was  held,  that  the  previous  unnecessary  statements  did  not  viti- 
ate the  affidavit.^  So,  where  the  affidavit  stated  that  "  the  de- 
fendant resided  out  of  the  State  of  Louisiana,  having  acquired 
no  legal  residence  in  the  State  ;  "  it  was  held,  that  the  statement 
of  the  reason  for  considering  him  a  non-resident,  did  not  vitiate 
it.*  But  if  the  surplusage  be  of  such  character  as  substantially 
to  impair  the  main  allegation  of  the  affidavit,  the  whole  will 
thereby  be  vitiated.^ 

§  105  a.  An  affidavit  setting  forth  conjunctively  two  grounds 
of  attachment,  inconsistent  with  each  other,  would  probably  be 
considered  bad  ;  but  not  so  where  they  were  not  inconsistent. 
Thus,  where  the  affidavit  alleged  that  the  defendant  ''  has  as- 
signed and  disposed  of  his  property  with  intent  to  delay  and 
defraud  his  creditors,  and  that  he  is  about  to  assign  and  dispose 

1  Merrill  v.  Low,  1  Pinney,  221.  33  Mississippi,  190;  Auter  v.  Steamboat 

2  Black  V.  Scanlon,  48  Georgia,  12.  J.  Jacobs,  34  Ibid.  269. 

3  Spear  v.  King,  6  Smedes  &  Marshall,  *  Farley  v.  Farior,6  Louisiana  Annual, 
276.     See  Van  Kirk  v.  Wilds,  11  Barbour,  725. 

620;   Edwards   ;;.   Flatboat   Blacksmith,  &  Emmett  y.  Yeigh,  12  Ohio  State,  335. 

[92] 


CHAP.  Y.]  AFFIDAVIT    FOR   ATTACHHIENT.  §  106 

of  his  property  with  like  intent;"  it  was  held  not  to  be  objection- 
able for  inconsistency  ;  since  it  might  be  true  that  the  defendant 
had  so  assigned   and  disposed  of  part  of  his  property,  and  was  /    ^ 

also  about  so  to  assign  and  dispose  of  another  part.^  y^ 

§  106.  All  the  elements  of  positiveness,  knowledge,  informa- 
tion, or  belief,  conjointly  or  separately,  required  by  statute, 
should  appear  in  the  affidavit,  or  be  substantially  included  in  its 
terms,  or  it  will  be  bad.  Thus,  if  a  fact  is  required  to  be  sworn  ^- 
to  in  direct  terms,  the  law  is  not  complied  with  by  a  party's 
swearing  that  he  is  "  informed  and  believes,"  ^  or  that  he  verily 
believes,^  the  fact  to  exist.  And  under  a  statute  authorizing  an 
attachment  "  where  there  is  good  reason  to  believe  "  the  exist- 
ence of  a  particular  fact,  an  affidavit  that  "it  is  the  plaintiff's 
belief "  that  the  fact  existed,  was  held  insufficient:  he  should 
have  stated  that  he  had  good  reason  to  believe  and  did  believe 
it."*  Under  a  law  requiring  the  party  to  swear  that  a  certain  fact 
did  not  exist  "  within  his  knowledge  or  belief,"  an  affidavit  was 
held  bad,  which  failed  to  state  the  want  of  his  belief.^  And  so, 
where  the  party  was  required  to  swear  "  to  the  best  of  his  knowl- 
edge and  belief,"  and  he  swore  only  to  the  best  of  his  belief.^ 
And  so,  where  he  was  required  to  swear  that  he  "  verily  believes," 
and  he  swore  "  to  the  best  of  his  knowledge  and  belief."  ''  And 
so,  where  he  was  required  to  swear  that  he  "  believes  the  plain- 
tiff ought  to  recover,"  and  he  swore  that  "  he  thinks  "  he  ought 
to  recover.^ 

But  where  the  affiant  was  required  to  state  that  the  facts  are 
within  his  personal  knowledge,  or  that  he  is  informed  and  believes 
them  to  be  true,  a  positive  oath  of  the  facts  was  held  sufficient, 
though  he  did  not  add  that  he  had  personal  knowledge  of  them, 
or  believed  them  to  be  true  ;  it  being  considered  that  the  positive 
oath  implied  both.^     And  so,  under  a  statute  requiring  an  affidavit 

1  Nelson  i\  Munch,  23  Minnesota,  229.  4  Stevenson  v.  Robbins,   5   Missouri, 

'^  Deupree  v.  Kisenafh,  y  Georgia,  598  ;  18. 

Ex  ]>arle  Haynes,  18  Wendell,  Oil  ;  Cad-  ^  Cobb  v.  Force,  6  Alabama,  468. 

well  V.  Colgate,  7  Barbour,  268  ;  J3yer  v.  '^  Bergli  r.  Jayne,  7  Martin,  n.  s.  609. 

Flint,  21  Illinois,  8U;  Archer  v.   Clafiin,  ~>  Stadler  i^.  Parnilee,  lU  Iowa,  23. 

31  Ibid.  306;  Williams  v.  xMartin,  1  Met-  ^  Kittenhouse  y.  Hannan,  7  West  Vir- 

calfe    (Ky.),   42;     Wilson    v,   Arnold,   5  ginia,  380. 

Michigan,  98.  '  Jones  v.  Leake,  11   Smedes  &  Mar- 

3  Greene  v.  Tripp,  11  Rhode  Island,  sliall,  591. 
424. 

[93] 


§  107  AFFIDAVIT    FOR   ATTACHMENT.  [CHAP.  V. 

"  sliowhig  "'  the  existence  of  a  certain  fact,  it  was  held,  that  an 
ntfitlavit  of  such  fact,  as  the  afliant  "  verily  believed,"  was  good  ; 
which  was,  in  effect,  to  decide  that  the  party's  belief  was  a  suffi- 
cient ''  showiug,"  to  fill  the  terms  of  the  statute.^ 

Under  a  statute  requiring  an  affidavit  "  showing,"  among  other 
things,  "  the  amount  which  the  affiant  believes  the  plaintiff  ought 
to  recover,"  an  affidavit  stating  positivel}'  that  a  certain  sum  was 
due  from  the  defendant  to  the  plaintiff,  was  considered  to  comply 
substantially  with  the  statute,  though  there  was  no  allegation  of 
the  affiant's  belief  that  the  plaintiff  ought  to  recover.^ 

§  107.  While  it  is  in  all  cases  advisable  to  follow  the  exact  lan- 
guage of  the  statute,  yet  if  the  words  of  the  affidavit  are  in  sub- 
stantial compliance  with  the  terms  of,  or  necessarily  and  properly 
imply  the  case  provided  for  by,  the  statute,  it  will  be  sufficient.^ 
Thus,  Avhere  the  law  authorized  an  attachment  when  the  debtor 
"  is  about  to  convey,  assign,  remove,  or  dispose  of  any  of  his 
property  or  effects,  so  as  to  defraud,  hinder,  or  delay  his  credit- 
ors ; "  an  affidavit  alleging  that  the  defendant  was  "  about  to 
convey  his  property  so  as  to  hinder  or  dela}'  his  creditors,"  was 
held  equivalent  to  alleging  fraud,  and  that  therefore  it  was  not 
necessary  to  use  the  word  "  defraud."  *  Where  the  cause  for 
which  an  attachment  might  issue  was,  that  "  he  resides  out  of  this 
State,"  an  affidavit  that  the  defendant  "is  a  non-resident,"  was 
considered  sufficient.^  Where  the  statute  authorized  an  attach- 
ment upon  an  affidavit  that  the  defendant  is  a  "  non-resident," 
an  affidavit  that  he  "  is  not  now  an  inhabitant  of  this  State  "  was 
sustained.*"  W^liere  the  language  of  the  statute  was,  "  that  the 
debtor  so  absconds  that  the  ordinary  process  of  law  cannot  be 
served  on  him,"  an  affidavit  that  the  debtor  hath  absconded  was 
considered  to  comply  substantially  with  the  law.'  An  affidavit 
that  the  defendant  "  is  about  removing,"  was  decided  to  be  in 
conformity  to  the  statute  which  provided  for  an  attachment  where 
the  debtor  "is  removing."^  Where  the  statute  gave  an  attach- 
ment when  the  debtor  "  is  removing  or  about  to  remove  himself 

1  Trew  V.    Gaskill,   10   InJiana,  265;  «  Wiltse  v.  Stearns,  13  Iowa,  282. 

McNamara  v.  Ellis,  14  Ibid.  516.  '  Wallis  i-.  Wallace,  6  Howard  (Mi.), 

'^  Sleet  V.  Williams,  21  Uliio  State,  82.  254. 

3  Van  Kirk  v.  Wilds,  11  Barbour,  520.  *  Lee  i-.  Peters,  1  Smedes  &  Marshall, 

*  Curtis  V.  Settle,  7  Missouri,  452.  603. 
5  Graham  v.  HuH',  8  Alabama,  171. 
[94] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  107 

or  his  property  beyond  the  limits  of  the  State;"  and  suit  was 
Lrouo-ht  ao-ainst  the  owner  and  master  of  a  steamboat,  alleging  that 
he  was  "  about  to  remove  the  said  steamboat  beyond  the  limits  ot 
this  State  ; "  it  was  considered  that,  however  defective  the  alle- 
gation might  be,  in  stating  the  defendant  to  be  about  to  remove 
only  a  single  piece  of- property,  yet  that  it  was  equivalent  to  stat- 
ing that  he  was  about  to  remove  himself,  since,  as  he  was  master 
of  the  boat,  if  he  removed  the  boat,  his  relation  to  her  necessarily 
involved  his  own  removal.^      Where   the   statute   required  the 
affidavit  to  state  "  that  the  defendant  is  about  to  remove  himself 
and  his  effects  so  that  the  claim  of  the  plaintiff  will  be  defeated," 
a  statement  "that  the  defendant   will  remove  himself  and  his 
effects  beyond  the  limits  of  the  State,  before  the  plaintiff's  claim 
could  be  collected  by  the  ordinary  course  of  law,  and  that  he  is 
transferring  and  conveying  away  his  property,  so  that  the  claim 
of  the  plaintiff  will  be  defeated,  or  cannot  be  made  by  the  regular 
course  of  law^"  was  held  to  be  a  substantial  compliance  with  the 
law.2     Where  an  affidavit  stated  that  "  A.,  B.,  and  C,  merchants 
and  partners,  trading  and  using  the  name  and  style  of  A.  &  Co., 
are  justly  indebted  to  the  plaintiff  in  the  sum  of  $5,460,  and  that 
the  said  A.  &  Co.  reside  out  of  this  State ; "  and  a  motion  was 
made  to  dismiss  the  attachment,  because  the  affidavit  did  not  state 
that  the  individuals  constituting  the  firm  of  A.  &  Co.  resided  out 
of  the  State ;  the  affidavit  was  held  sufficiently  certain,  becavise 
when  a  partnership  is  spoken  of  by  its  partnership  name,  and  said 
to  reside  or  not  to  reside  in  a  particular  place,  the  meaning  is 
presumed  to  be,  that  the  members  composing  the   partnership 
reside  or  do  not  reside  in  that  place.^     Where  the  statute  required 
an  oath  that  "  the  defendant  is  about  to  remove  from  the  State, 
so  that  the  ordinary  process  of  law  cannot  be  served  on  him,"  an 
affidavit  that  he  is  "about  to  abscond  himself  and  his  property 
out  of  the  State,  so  that  the  process  of  law  cannot  be  served  on 
him,"  was  considered  as  equivalent  to  the  assertion  that  he  is 
about  to  remove  himself  and  property  out  of  the  State  privately, 
and    as    substantially    within    the   requirement   of   the    statute.^ 
Where  the  statute  required  the  affidavit  to  state  "  the  amount  of 
the  sum  due,''  and  the  plaintiff  swore  tliat  the  defendant    was 

1  Runyan  v.  Morgan,  7  Humphreys,  210.       »  Cliambers  v.  Sloan,  I'J  Georgia,  84. 
'^  Dandridge   v.    Stevens,    12    Snaedes  &      *  Ware  v.  Todd,  1  Alabama,  199. 
Marsliall,  723. 

[95] 


§  107  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

"really  indebted  "  to  him  in  a  certain  sum,  it  was  held,  that  the 
expression  conveyed  tiie  idea  of  a  debt  actually  due  and  payable, 
and  was  sufficient.^  Where,  in  enumerating  the  cases  in  wliich 
an  attachment  would  lie,  one  was  "  when  the  debtor  is  about 
leaving  permanently  the  State,"  and  in  a  subsequent  part  of  the 
same  statute,  in  relation  to  the  affidavit,  the  party  was  required 
to  swear  that  "  the  debtor  is  on  the  eve  of  leaving  the  State  for- 
ever ;"  it  was  held,  that  the  latter  requirement  was  fulfilled  by 
an  affidavit  declaring  that  "  the  defendant  was  about  leaving  the 
State  permanently."  "^  Under  a  statute  giving  attachment  "  when 
a  debtor  is  concealing  or  about  removing  his  effects  so  that  the 
claim  of  a  creditor  will  be  defeated,"  an  affidavit  that  a  debtor 
"is  about  removing  from  the  State,  or  is  so  concealing  his  effects 
as  to  defeat  the  creditor's  claim,"  was  held  sufficient.^  Under  a 
statute  authorizing  an  attachment  where  the  debtor  "  is  about  to 
remove  his  goods  out  of  this  State,"  an  affidavit  stating  that  the 
defendant  "  had  removed  part,  and  was  about  to  remove  the 
remainder  of  his  goods  and  effects  from  this  State,"  was  consid- 
ered as  complying  with  the  law.*  Where  an  attachment  mighty 
issue  when  "•  any  person  hath  removed,  oris  removing  himself  out 
of  the  county  privately,  or  so  absconds  or  conceals  himself,  that 
the  ordinary  process  of  law  cannot  be  served  on  him,"  an  affidavit 
that  the  defendant  "  was  removing  himself  out  of  the  county 
privately,"  was  held  sufficient,  without  the  addition  of  the  words 
"  so  that  the  ordinary  process  of  law  cannot  be  served."  ^  Under 
a  statute  using  the  phrase  "  absconding  or  concealing  himself  or 
his  property  or  effects,"  an  affidavit  that  the  defendant  ''  is  con- 
cealing his  j)roperty  and  effects,"  was  adjudged  sufficient.^  An 
allegation  that  the  defendant  "is  absconding,"  was  held  to  be 
sufficient  under  an  act  using  the  words  "  he  absconds  ;  "  and  an 
allegation  "  that  they  are  removing  their  propert}^  to  be  removed 

1  Parmele  v.  Johnston,  15  Louisiana,  the  affiihivit  is  made.    Cross  v.  McMaken, 

429.     Where  the  law  requirefl   tlie  affi-  17  Michigan,  511. 

davit   to   state    "  that   the   defendant   is  '^  Sawyer  v.  Arnold,  1  Louisiana  An- 

indebted   to  the  plaintiff,  anil  specifying  nual,  315. 

the  amount  of  such  indebtedness,  as  near  ^  Commercial    Bank    v.    UUman,    10 

as  may  be,  over  and  above  all  legal  otf-  Smedes  &  Marshall,  411. 
sets,  and  that  tiie  same  is  due  upon  con-  *  Mandel  v.  Peet,  18  Arkansas,  236. 

tract,  express  or  implied,  or  upon  judg-  5  Uank  of  Alabama  v.  Berry,  2  Hura- 

ment;  "  the  Supreme  Court  of  Michigan  phreys,  443. 

held,  that  the  words  /s  due  refer  not  only  •»  Boyd    v.    Buckingham,     10    Hum- 
to  the  existence  of  tiie  indebtedness,  but  phreys,  434. 
to  its  being  due  and  payable  at  the  time 
[96] 


CHAP.  Y.]  AFFIDAVIT   FOR   ATTACHMENT.  §  108 

beyond  the  limits  of  tlie  State,"  was  considered  substantially 
equivalent  to  an  allegation  that  they  are  causing  their  property 
to  be  removed  beyond  the  limits  of  the  State.^  Where  the  statute 
authorized  an  attachment  when  a  debtor  "  has  converted  or  is 
about  to  convert  his  property  into  money  or  evidences  of  debt 
with  intent  to  place  it  beyond  the  reach  of  his  creditors,"  an 
affidavit  that  "  the  defendant  had  already  disposed  of  and  assigned 
the  notes  attached,  by  pledging  them  for  advances,  and  that  she 
will  further  assign  said  notes  and  convert  them  into  money  with 
the  intent  to  place  them  beyond  the  reach  of  the  petitioner,  who 
is  creditor,"  was  considered  a  substantial  compliance  with  the 
law.^  Under  a  statute  authorizing  an  attachment  "  when  the 
debtor  is  about  fraudulently  to  dispose  of  his  property,"  an  affi- 
davit which  substituted  "  effects  "  ^  or  "  goods  "  *  for  "  property" 
was  deemed  sufficient. 

§  107  a.  If  the  literal  following  of  the  words  of  the  statute 
would  make  an  affidavit  upon  which  perjury  could  not  be  assigned, 
it  is  held  in  Wisconsin  that  the  affidavit  is  bad.  Thus,  where 
the  law  authorized  the  issue  of  an  attachment  upon  affidavit  that 
the  defendant  "  has  assigned,  disposed  of,  or  concealed,  or  is 
about  to  assign,  dispose  of,  or  conceal  any  of  his  property  with 
intent  to  defraud  liis  creditors,"  and  the  affidavit  was  in  the  pre- 
cise words  of  the  law,  it  was  considered  bad;^ 

§  108.  Numerous  cases  of  insufficient  affidavits  are  reported. 
It  is  not  without  advantage  to  present  them  here.  In  doing  so, 
as  will  be  seen,  no  attempt  is  made  at  systematic  arrangement, 
but  they  are  given  in  the  order  they  were  met  with.  Under  a 
statute  authorizing  attachment,  where  "  the  debtor  is  removing 
out  of  the  county  privately,"  an  affidavit  that  he  "  intends  to  re- 
move "  is  not  sufficient.*^  So,  where  an  attachment  was  author- 
ized when  the  debtor  "  absconds,"  and  the  affidavit  was  that  he 
"  has  absconded." "  So,  where  the  ground  of  attachment  was, 
"  that  any  person  hath  removed,  or  is  removing  himself  out  of 

1  Kennon  v.  Evans.  36  Georgia,  89.  ^  Miller  v.  Munson,  34  Wisconsin,  579. 

^  Frere  v.  Ferret,  25  Louisiana  Annual,  *^  Mantz  v.  Hendley,  2  Hening  &  Mun- 

500.  ford,  308. 

8  Free  v.  Hukill,  44  Alabama,  197.  "^  Levy  v.  Millman,  7  Georgia,   167  ; 

*  Hafley  v.  Patterson,   47    Alabama,  Brown  v.  McCluskey,  26  Ibid.  577. 
271. 

7  [97] 


§108  AFFIDAVIT    FOE   ATTACHMENT.  [CHAP.  V. 

the  county  privately  ;  "  and  the  affidavit  said  that  the  defendant 
"is  about  to  remove  himself  out  of  the  county,  so  that  the 
ordinary  process  of  law  cannot  be  served  upon  him."  ^  So, 
where  the  ground  of  attachment  was,  that  "  the  defendant 
is  about  to  remove  his  projDcrty  out  of  the  State,  and  that  thereby 
the  plaintiff  will  probably  lose  the  debt,  or  have  to  sue  for  it  in 
another  State ; "  and  the  affidavit  set  forth  as  the  consequence 
of  the  alleged  anticipated  removal  of  the  goods  of  the  de- 
fendant, that  "the  ordinar}^  process  of  law  cannot  be  served  on 
him."  ^  So,  where  the  statute  gave  an  attachment  when  "  the 
debtor  is  not  resident  in  the  State,"  and  the  affidavit  was  that 
the  defendant  "  is  not  at  this  time  within  the  State."  ^  So,  an  af- 
fidavit "  that  the  defendant  has  left  the  State  never  to  return," 
does  not  comply  with  a  statute  requiring  an  averment  that  he  is 
"about  to  remove  his  property  out  of  the  State." ^  A  statute 
authorized  an  attachment  upon  an  affidavit  that  "  the  debtor  is 
either  on  the  eve  of  leaving  the  State  permanently,  that  he  has 
left  it  never  again  to  return,  that  he  resides  out  of  the  State,  or 
that  he  conceals  himself  in  order  to  avoid  being  cited."  An  af- 
fidavit that  the  defendant  "  attempted  to  depart  from  the  State 
permanently,  and  that  he  concealed  himself  so  as  to  avoid  being 
cited  to  appear  and  answer  the  demand  of  the  plaintiff,  and  that 
he  is  about  to  remove  his  property  out  of  the  State,"  was  consid- 
ered insufficient ;  because,  in  regard  to  the  departure  and  con- 
cealment, it  referred  indefinitel}^  to  the  past,  making  no  allusion 
either  to  the  present  or  future,  and  was  too  vague  to  form  the 
legal  foundation  of  an  attachment.^  Under  a  statute  authorizing 
attachment  "  when  any  person  shall  be  an  inhabitant  of  any 
State,  territory,  or  country,  without  the  limits  of  this  State,  so 
that  he  cannot  be  personally  served  with  process,"  an  affidavit 
was  held  bad,  which  averred  the  inhabitancy  in  another  State, 
but  omitted  the  averment  as  to  the  impossibility  of  j)ersonal  ser- 
vice of  process.^  Under  a  statute  authorizing  an  attachment 
where  the  defendant  "  has  departed  from  the  State  with  intent 
to  defraud  his  creditors,  and  to  avoid  the  service  of  a  summons," 
an  affidavit  that  "  the  defendant  is  absent,  so  that  the  ordinary 
process   of  law  cannot   be    served   on   him,"  was    held   fatally 

1  Wallis  V.  Murphy,  2  Stewart,  15.  ^  New  Orleans  r.  Garland,  11  Louisi- 

-  Napper  v.  Noland,  9  Porter,  218.  ana  Annual,  438. 

3  Cro.xall  V.  Hutehings,  7  Halsteil,  84.  *'  Thompson  v.  Chambers,  12  Smedes 

*  Millaudonr.roucher,8  Louisiana, 582.  &  Marshall,  488. 

[08] 


CHAP,  v.]  AFFIDAVIT    FOE.   ATTACHMENT.  §  108 

defective.^  Under  a  statute  authorizing  an  attachment,  where 
the  debtor  "  hath  removed  himself  out  of  the  county  privately, 
so  that  the  ordinary  process  of  law  cannot  be  served  on  him,"  an 
affidavit  alleging  the  removal,  but  omitting  the  word  "  privately," 
was  held  bad.^  An  affidavit  that  the  defendant  "  is  about  to  ab- 
scond," was  decided  not  to  comply  with  a  statute  authorizing  an 
attachment  where  the  debtor  "  absconds  or  conceals  himself ;  " 
or  with  one  using  the  terms,  "  shall  be  absconding  or  concealing 
himself;"-^  or  with  one  using  the  phrase  "hath  absconded.""^ 
Where  attachment  was  authorized  when  the  debtor  "  is  removing 
out  of  the  county  privately,"  an  affidavit  that  he  "  hath  removed  " 
is  bad.'5  Under  a  statute  using  the  words  "  is  privately  removing 
out  of  the  county,  or  absconds  and  conceals  himself,  so  that  the 
ordinary  process  of  law  cannot  be  served  upon  him,"  an  affidavit 
that  the  defendant  had  "  either  left  the  county  and  common- 
wealth, or  so  absconds  himself  that  the  ordinary  process  of  law 
cannot  be  served  upon  him,"  was  held  insufficient.^  An  affidavit 
that  the  defendant  "  was  removing  out  of  the  county  privately," 
does  not  comply  with  a  statute  using  the  words  "  is  removing 
out  of  the  county  privately,  or  absconds  or  conceals  himself,  so 
that  the  ordinary  process  of  law  cannot  be  served  upon  him." '' 
Where  the  statute  required  the  affidavit  to  state  that  the  defend- 
ant "  had  not  resided  in  the  State  for  three  months  immediately 
preceding  the  time  of  making  application  for  the  attachment," 
and  the  affidavit  was  that  he  "  had  not  resided  there  for  three 
months  immediately  preceding  the  date  of  the  affidavit,"  and  the 
affidavit  was  dated  two  days  before  the  attachment  was  applied 
for,  it  was  held  insufficient.^  In  a  proceeding  against  several  de- 
fendants as  non-residents,  an  affidavit  stating  that  "  they  are  not 
all  residents"  of  the  State  in  which  the  writ  is  sought,  is  indefi- 
nite and  insufficient,  as  clearly  implying  that  some  of  them  do 
reside  there.'^  Where  the  statutor\^  ground  of  attachment  was, 
that  the  defendant  "  is  not  a  resident  of  or  residing  within  this 
State,"  an  affidavit  that  he  "  is  not  a  resident  of  this  State,  so 
that  the  process  of  this  court  cannot  be  served  upon  him,"  was 

'  Love  y.  Young,  G9  North  Carolina,  ^  Hopkins  i'.  Suttles,  Hardin,  05,  note. 

65.  "^  Davis  v.  Edwards,  Ilardin,  -'342. 

2  M'Culloch  V.  Foster,  4  Yc-rger,  162.  "?  Poage  v.  Poage,  3  Dana,  579. 

3  Bennett  v.  Avant,  2  Sneed,  152.  8  Drew  v.  Dcquindre,  2  Douglass,  93. 
*  Lewis    V.   Uutler,    Kentucky    Deci-  ^  Powers  v.  Hurst,  o  Blackford,  229. 

sions  (Sneed),  290. 

[99] 


§  108  a  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

held  insufficient.^  Under  the  same  statute,  an  affidavit  that  the 
defendant  "  is  not  a  resident  of  this  State,"  was  liekl  bad.^ 
"Where  the  statute  authorized  an  attacliment  where  "a  debtor  is 
on  the  eve  of  leaving  the  State  for  ever,"  an  affidavit  that  the 
affiant  "  verily  believes  and  has  just  grounds  to  apprehend  that 
the  defendant  may  depart  from  the  State  permanently,"  is  in- 
sufficient.3  Under  a  statute  requiring  an  affidavit  that  the 
defendant  "  is  removing  out  of  the  district  privately,  or  absconds 
or  conceals  himself,  so  that  the  ordinary  process  of  law  cannot  be 
served  upon  him,"  an  affidavit  that  he  "is  removing  or  is  about 
to  remove  out  of  said  district,  so  that  the  ordinary  process  of  law 
cannot  be  served  upon  him,"  was  held  bad.*  Under  a  statute 
giving  an  attachment  when  the  debtor  "  is  about  fraudulently  to 
dispose  of  his  j)roperty,"  an  allegation  that  the  plaintiff  *•'  has 
reasons  to  believe,  and  does  believe,  that  the  defendant  will  con- 
vey and  dispose  of  his  groceries  and  his  articles  in  his  said 
grocery,  in  order  to  defraud  his  creditors,"  was  considered  insuf- 
ficient.°  And  so,  under  the  same  statute,  Avhere  the  allegation 
was  "  that  the  defendants,  in  conveying  their  property,  will  en- 
deavor to  defeat  the  collection  of  complainant's  debt ;  that  they 
have  avoided,  and,  as  complainant  believes,  they  intend,  by 
future  and  fraudulent  conveyances  and  transfers,  to  evade  and 
avoid  payment  of  his  said  debt."  ^ 

§  108  a.  In  probably  every  State  where  an  affidavit  setting 
forth  grounds  of  attachment  is  required,  the  writ  is  authorized 
where  a  debtor  is  "  about  "  to  do  some  particular  act.  The 
meaning  attributable  to  "  about,"  in  that  connection,  was  dis- 
cussed by  the  Supreme  Court  of  Mississippi,  which  said  :  "  What 
is  the  meaning  of  the  terms  'about  to  remove?'  'About'  — 
does  that  imply  the  next  hour,  or  day,  or  week,  or  month  ?  Does 
the  statute  convey  the  idea  that  necessarily  the  act  must  be  done 
within  any  definite  space  of  time  ?  The  implication  is  quite  strong 
that  the  '  removal '  will  shortly  occur,  but  no  more  definiteness 
and  precision  is  set  forth  than  the  word  '  about '  imports.  Among 
the  definitions  or  senses  in  which  the  word  is  used,  given  by  lexi- 

1  Lane  v.  Fellows,  1  Missouri,  251.  *  Allen    v.   Fleming,    14    Richardson, 

'-  Alexander  v.  Haden,  2  Missouri,  187.  196. 

^  Reding  i'.  Ridge,  14  Louisiana  An-  ^  Jackson  v.  Burke,  4  Heiskell,  610. 

nual,  36.  ^  McHaney  v.  Cawthorn,  4  Heiskell, 


508. 


[100] 


CHAP,  v.]  AFFIDAVIT   FOR    ATTACHMENT.  §  108  a 

cographers,  are  '  near  to,'  '  in  performance  of  some  act,'  '  con- 
cerned in,'  '  engaged  in.'  It  is  an  ordinary  word  of  no  artificial 
or  technical  signification,  and  should  receive  the  rendering  which 
is  given  to  it  in  common  parlance.  If  the  debtor  is  engaged  in 
the  act,  or  is  near  to  the  performance  of  the  act  of  removal,  if 
he  entertains  the  purpose  and  is  making  preparations  to  carry  it 
out,  then  the  creditor  is  entitled  to  the  writ.  It  would  be  hurt- 
ful in  practice  to  attempt  to  declare  precisely  what  is  implied  in 
the  terms  '  about  to  remove.'  For  experience  would  show  that 
many  meritorious  cases  would  fall  within  the  intendment  of  the 
remedy,  which  might  be  excluded  by  a  rule  laid  down  in  advance. 
We  think  it  wiser  and  safer  in  the  administration  of  practical  jus- 
tice, to  leave  each  case,  as  it  arises,  to  be  governed  by  its  own 
special  facts."  Influenced  by  these  views  the  court  held  it  error 
to  refuse  an  instruction,  "  that  the  jury  may  infer  the  purpose  to 
remove,  at  the  date  of  the  attachment,  from  the  previous  expres- 
sions of  such  design,  and  the  acts  of  the  debtor;  and  it  is  not 
necessary  that  the  defendant  purposed  immediate  removal,  if  the 
evidence  showed  that  the  design  existed,  and  his  actions  pur- 
posed to  carry  that  design  into  execution,  at  some  short  time 
thereafter,  and  as  soon  as  he  had  prepared  his  affairs  for  removal, 
and  without  paying  his  debts."  ^ 

This  subject  was  viewed  differently  b}'  the  Supreme  Court  of 
Tennessee,  under  a  statute  authorizing  an  attachment  when  the 
debtor  is  "  about  fraudulently  to  dispose  of  his  property ;  "  and 
the  allegation  was  that  the  plaintiff  "  has  reasons  to  believe,  and 
does  believe,  that  the  defendant  will  convey  and  dispose  of  his 
groceries  and  his  articles  in  his  said  grocery,  in  order  to  defraud 
his  creditors."  This  allegation  was  considered  not  to  comply 
with  the  law,  and  the  court  thus  expressed  itself:  "  These  words 
'  about  fraudulently  to  dispose  of  his  property,'  import  an  exi- 
gency by  which  the  creditor's  debt  is  in  peril  of  immediate  loss 
unless  this  extraordinary  remedy  is  allowed  to  him.  Not  an 
act  which  may  peradventure  be  done  at  some  future  time,  but 
a  fraudulent  act  on  the  very  eve  of  consummation.  The  mere 
opinion  of  the  complainant  that  the  defendant  will  do  a  fraudu- 
lent act,  does  not  import  that  he  is  about  to  do  it,  or  that  the  act 
is  about  to  be  done,  but  that  it  will  be  done  at  some  future  and 
indefinite  day.     The  law  requires  the  allegation  of  an  act,  not  an 

1  Myers  v.  Farrell,  47  Mississippi,  281. 

[101] 


§  111  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

intent,  —  an  act  wliich,  though  not  yet  consummated,  is  presently 
to  be  (lone.  .  .  .  The  word  '  about,*  in  the  sense  of  the  attachment 
laws,  must  be  taken  in  its  common  acceptation  as  defined  by  lexi- 
cographers, '  near  to  in  action,  or  near  to  in  the  performance  of 
some  act.'  We  hold  tliat  to  authorize  an  attachment  on  the 
ground  that  the  defendant  is  about  fraudulently  to  dispose  of  his 
property,  the  charge  in  the  affidavit,  if  not  in  the  words  of  the 
statute,  must  import  that  the  defendant  is  on  the  eve  of  such 
fraudulent  disposition  of  his  property ;  and  we  are  of  opinion 
that  the  charge  that  the  defendant  will  dispose  of  his  property  in 
order  to  defraud  his  creditors,  is  not  sufficient  to  authorize  the 
issuance  of  an  attachment."^ 

§  109.  The  fact  that  two  affidavits  of  the  same  import  appear 
in  the  record,  will  not  invalidate  the  attachment.  The  second 
will  be  disregarded.^ 

§  110.  In  an  action  against  two  joint  debtors,  if  the  affidavit 
be  insufficient  as  to  one  of  them,  it  will  not  authorize  an  attach- 
ment against  the  property  of  both.^ 

§  111.  It  is  proper  that  an  affidavit  should  be  made  as  near  as 
practicable  at  the  time  of  the  institution  of  the  suit ;  but  it  is 
believed  to  be  a  general  practice  to  allow  attachments  to  issue  on 
affidavits  made  some  time  before  the  issue  of  the  writ.  In  South 
Carolina,  where  the  law  required  the  affidavit  to  be  made  at  the 
time  of  filing  the  declaration,  it  was  decided,  that  so  constant 
and  uniform  had  been  the  practice  to  the  contrary,  that  it  ought 
not  to  be  contested  or  varied.  "It  will  be  seen  at  once,"  said 
the  court,  "  that  unless  a  party  is  present  to  make  the  affidavit  at 
the  filing  of  the  declaration,  a  foreigner,  or  even  one  of  our  own 
countrymen,  Avho  should  accidentally  be  absent  from  the  State, 
might  be  deprived  of  the  advantage  accruing  under  the  attach- 
ment act.""*  And  in  Missouri  it  was  held,  that  the  la]3se  of  nine 
or  ten  days  between  the  date  of  the  affidavit  and  the  issue  of  the 
writ  would  not  sustain  a  motion  to  quash.  The  affidavit  alleged 
the  non-residence  of  the  defendant,  and  it  was  urged  that  the 
fact,  though  true  when  sworn  to,  may  have  ceased  to  be  so  when 

1  Jackson  v.  Burke,  4  Heiskell,  610.  ■*  Hamilton  y.  Knight,  1  Blackford,  25. 

-  "VVliarton  v.    Conger,   9    Smedes    &  *  Creagh  v.  Delane,  1  Nott  &  McCord, 

Marshall,  510.  189 ;  Wright  v.  Ragland,  18  Texas,  289. 

[102] 


CHAP,  v.]  AFFIDAVIT   FOR    ATTACHMENT.  §  112 

the  writ  was  obtained  ;  but  the  court  said,  that  if  such  were  the 
case,  it  should  be  taken  advantage  of  by  plea  in  abatement,  which 
would  put  in  issue  the  truth  of  the  affidavit  at  the  time  the  writ 
issued.^  But  if  there  be  such  delay  as  fairly  to  induce  the  pre- 
sumption that  the  process  of  the  court  is  abused,  or  used'oppres- 
sively,  or  that  the  ground  of  attachment  may  not  exist  when  the 
writ  is  sued  out,  the  whole  proceeding  may,  on  motion,  be  set 
aside.  Unless,  however,  there  are  these  strong  features  to  war- 
rant this  peremptory  disposition  of  the  writ,  the  resort  should  be 
to  a  plea  in  abatement.^  In  Michigan,  however,  under  an  act 
requiring  the  affidavit  to  state  that  the  defendant  "  does  not  reside 
in  this  State,  and  has  not  resided  therein  for  three  months  imine- 
diately  preceding  the  time  of  making  application  for  such  attach- 
ment,'" it  was  held,  that  an  affidavit  made  the  day  before  the 
attachment  issued  was  bad ;  ^  and  so  of  an  affidavit  under  an  act 
which  used  in  that  connection  the  words  "  immediately  preced- 
ing the  time  of  making  such  affidavit^  ^  Under  each  act  it  was 
decided  that  the  affidavit  must  be  made  on  the  same  day  that  the 
attachment  issues. 

§  112.  The  mode  of  defeating  an  attachment  on  account  of 
defects  in,  or  the  omission  to  make,  an  affidavit,  varies  in  differ- 
ent States.  The  most  usual  mode  is  by  motion  to  quash  or  dis- 
solve the  attachment.  This  motion  is  in  the  nature  of  a  plea  in 
abatement,  and,  if  successful,  its  effect  is  the  same.^  In  Alabama. 
and  North  Carolina,  however,  the  only  way  to  reach  such  defects, 
is  by  that  plea.^  Whichever  mode  is  adopted,  it  should  be  re- 
sorted  to  in  limine ;  for  after  appearance  by  the  defendant  and 
plea  to  the  action,  it  is  too  late  to  take  advantage  of  defects  in 
the  preliminary  proceedings ;  they  will  be  considered  as  waived, 
unless  peculiar  statutory  provisions  direct  otherwise."     But  it  is 

1  Graham  v.  Bradbury,  7  Missouri,  ^  Lowry  v.  Stowe,  7  Porter,  483  ; 
281.  See  O'Neil  v.  N.  Y.  &  S.  P.  Mining  Jones  v.  Pope,  6  Alabama,  154  ;  Burt  v. 
Co.,  3  Nevada,  141 ;  Campbell  v.  Wilson,  Parish,  9  Ibid.  211  ;  Kirkman  v.  Patton, 
6  Texas,  379;  Wright  v.  Ragland,  18  19  Ibid.  32;  Garmon  y.  Barringer,  2  Dev- 
Ibid.  289.  ereux  &  Battle,  502. 

2  McClanahan  v.  Brack,  4G  Missis-  "^  Garmon  v.  Barringer,  2  Devereux  & 
sippi,  246  ;  Campbell  v.  Wilson,  6  Texas,  Battle,  502 ;  Stoney  v.  McNeill,  Harper, 
379 ;  Wright  v.  Ilaglaiid,  18  Ibid.  289.  156  ;    Watson   v.    McAlHster,   7    Martin, 

3  Drew  V.  Dequindre,  2  Douglass,  93.       308  ;  Enders  v.  Steamer  Henry  Clay,  8 
*  Wilson  V.  Arnold,  5  Michigan,  98;     Robinson  (La.;,  30;  Symons  y.  Northern, 

Fessenden  v.  Hill,  6  Ibid.  242.  4  Jones,  241  ;  Burt  v.  Parish,  9  Alabama, 

5  Watson  V.  McAllister,  7  Martin,  368.     211;  Bishop  v.  Fennerty,  46  Mississippi, 

[103] 


§  112  a  AFFIDAVIT   FOR   ATTACHMENT.  [CHAP.  V. 

held,  that  a  defendant's  appearance,  by  attorney,  to  move  for  the 
dismissal  of  an  attachment,  and  to  except  to  the  jurisdiction  of 
the  court,  is  not  such  an  appearance  as  may  be  construed  into  a 
submission  to  the  jurisdiction.^  If,  however,  with  the  appearance 
for  the  purpose  of  making  that  motion,  the  defendant  combine  a 
motion  to  review  and  set  aside  the  judgment  because  it  was  ren- 
dered upon  insufficient  evidence,  that  goes  to  the  merits  of  the 
action,  and  is  a  full  submission  to  the  jurisdiction,  and  a  waiver 
of  all  objections  to  the  process.^  And  so  if  the  defendant  appear, 
and  have  the  case  put  at  the  foot  of  the  docket.^  And  if  a  de- 
fendant appear,  and  deny  the  allegations  of  a  defective  affidavit, 
and  treat  it  as  if  it  were  legal  in  its  terms,  and  go  into  a  trial  of 
the  issue  so  made,  and  thereby  get  all  the  benefit  that  he  could 
have  had  if  the  affidavit  had  been  in  strict  conformity  to  law, 
and  the  result  of  the  trial  be  adverse  to  him ;  he  cannot  obtain  a 
reversal  of  the  judgment  because  of  the  defect  in  the  affidavit.* 

§  112  a.  In  reference  to  the  matter  of  the  defendant's  appear- 
ance to  an  attachment  suit,  this  case  occurred  in  Illinois.  Suit 
by  attachment  was  brought  against  a  foreign  steamship  company, 
as  a  corporation,  and  service  was  had  on  the  company's  agent, 
and  garnishees  were  summoned.  The  company  appeared  by 
counsel,  and  pleaded  nul  tiel  corporation.  Thereafter  the  plain- 
tiff had  leave  to  amend,  and  did  amend,  his  declaration,  by  insert- 
ing the  names  of  certain  individuals,  as  partners  doing  business 
under  the  name  by  which  the  corporation  was  sued ;  and  against 
them  he  took  an  alias  summons  and  writ  of  attachment.  No 
service  of  the  summons  w-as  had,  but  under  the  attachment  the 
original  garnishees  were  summoned  again.  No  new  affidavit  was 
filed,  showing  the  indebtedness  and  non-residence  of  the  substi- 

570;  Woodruff  r.  Sanders,  18  Wisconsin,  were     improperly    issued."      Taylor    v. 

161 ;  Blackwood  v.  Jones,  27  Ibid.  498  ;  Smith,  17  B.  Monroe,  536. 

Fairfield  v.  Madison  Man.  Co.,  38  Ibid.  i  Bonner  i'.  Brown,  10  Louisiana  An- 

346;  McDonald  V.  Fist,  60  Missouri,  172.  nual,  3-34;  Johnson  v.  Buell,  26  Illinois, 

But  in  Kentucky  the   Court  of  Appeals  66  ;    Blackwood  v.  Jones,  27  Wisconsin, 

held,  that  a  motion  to  discharge  the  at-  498 ;  Crary  v.  Barber,   1   Colorado,   172. 

tachment  was  well  made  during  the  prog-  Sed  contra,  Whiting  v.  Budd,  5  Missouri, 

ress  of  the  trial,  and  after  most  of  the  443 ;  Evans  r.  King,  7  Ibid.  411. 

testimony  had  been  given  to  the  jury ;  '-'  Anderson  v.  Coburn,  27  Wisconsin, 

and  remarked,  "  We  do  not  see  how  a  558. 

motion  of  this  sort  could  well  come  too  ^  Oredr  v.  Clough,  52  Missouri,  55. 

late,  as  the  court,  even  upon  final  deci-  *  Ryon  v.  Bean,  2  Metcalfe  (Ky.),  137. 
sion,  should  vacate  the  attachment  if  it 
[104] 


CHAP,  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §   113 

tilted  defendants,  nor  did  they  appear  after  the  amendment,  and 
judgment  in  personam  was  taken  against  them,  on  which  they  sued 
out  a  writ  of  error.  In  the  appellate  court  it  was  contended  that 
the  appearance  of  the  defendants  to  the  action  in  its  original  shape 
conferred  jurisdiction,  and  authorized  a  personal  judgment  against 
them  ;  but  this  position  was  overruled  ;  the  court  holding  that  the 
appearance  to  the  action,  as  against  the  corporation,  could  not  be 
considered  an  appearance  after  the  amendment ;  and  the  judg- 
ment was  reversed.^ 

§  113.  As  we  have  seen,  a  defective  affidavit  cannot  be 
amended  unless  the  law  expressly  authorize  it ;  ^  but  where  it 
does  authorize  it,  such  an  affidavit  is  not  void,  but  only  voidable 
by  a  direct  proceeding  to  have  it  set  aside  or  quashed.  If  it  con- 
tains the  names  of  the  parties,  and  specifies  the  amount  of  the 
indebtedness,  and  avers  a  statutory  ground  for  issuing  the  writ, 
however  defectively  any  of  those  points  may  be  stated,  it  may  be 
amended.  But  if  it  in  no  way  refers  to  the  parties,  or  fails  to  fix 
any  amount  of  indebtedness,  or  to  state  any  statutory  ground  for 
suing  out  the  writ,  it  is  not  amendable,  but  void.^ 

In  some  States  the  quashing  or  setting  aside  of  an  attachment 
for  defect  in  the  affidavit  is  prohibited,  if  a  sufficient  affidavit  be 
filed.  In  such  case  it  is  error  to  quash  the  proceedings,  unless 
an  opportunity  be  given  the  plaintiff  to  amend,  and  he  fail  to  do 
so.*  The  proper  order  to  be  made  by  the  court  is,  that  the  pro- 
ceedings be  quashed,  unless  the  plaintiff,  within  a  designated  time, 
file  a  sufficient  affidavit.  A  judgment  dissolving  the  attachment 
and  giving  leave  to  amend,  is  inconsistent,  and  may  be  reversed.^ 

If  the  statute  provide  only  for  the  amendment  of  defects  of 
form  in  the  affidavit,  the  omission  therefrom  of  a  material  aver- 
ment cannot  be  supplied  by  amendment.^  Under  no  power  to 
amend  can  the  entire  omission  of  an  affidavit  be  so  supplied ;  for 
an  amendment  presupposes  the  existence  of  an  affidavit,  in  a  de- 
fective form.'' 

1  Inman  v.  Allport,  65  Illinois,  540.  Bonds,  post,  §  147;  Palmer  v.  Bosher,  71 

2  Ante,  §  87.  North  Carolina,  291. 

3  Booth  V.  Rees,  20  Illinois,  45 ;  Moore  ^  Graves  v.  Cole,  1  G.  Greene,  405. 

V.  Mauck,  7U  Ibid.  3'Jl.  «  Hall  v.  Brazelton,  40  Alabama,  40G  ; 

*  Bunn  V.  Pritchard,  6  Iowa,  50  ;  Watt     40  Ibid.  359. 
V.  Carnes,  4   Ileiskell,   532.     See  analo-  ''  Greenvault    v.    F.    &  M.   Bank,    2 

gous    cases    in    regard    to    Attachment     Douglass,  498.     See  McReynolds  v.  Neal, 

y  Humphreys,  12. 

[105] 


§  113  AFFIDAVIT    FOE,   ATTACHMENT.  [CHAP.  V. 

If  when  the  attachment  issues  the  affidavit  be  witliout  date 
and  not  sworn  to,  the  othcer  issuing  it  has  no  authority  after- 
wards to  amend  it  by  allowing  the  party  to  sign  and  swear  to  it, 
and  inserting  a  date,  without  issuing  a  new  writ.^ 

If  an  affidavit  be  so  defective  that  the  writ  issued  upon  it  is 
void,  no  amendment  can  give  validity  to  the  writ,  except  as 
between  the  parties  to  the  suit ;  it  cannot  cut  off  intermediate 
rights  acquired  by  third  persons  in  the  property  attached.^  This 
doctrine  was,  in  Kentucky,  extended  to  a  case  where  the  writ 
was  not  void,  but  only  irregular,  in  having  been  issued  upon  a 
defective  affidavit.^ 

In  amended  affidavits  the  allegations  must  relate  to  the  time  of 
suing  out  the  attachment ;  if  they  refer  only  to  the  existence  of 
the  ground  for  attachment  when  the  amendment  is  made,  they 
will  not  sustain  the  writ.** 

1  Watt  V.  Games,  4  Heiskell,  532.  See  ^  BgU  v.  Hall,  2  Duvall,  288. 
Pope  V.  Hibernia  Ins.  Co.,  24  Ohio  State,  ■»  Crouch    v.    Crouch,  9    Iowa,   269  ; 
481;  Union  C.  M.  Co.  v.  Raht,  16  New  Wadsworth  r.  Cheeny,  10  Ibid.  257 ;  Rob- 
York  Supreme  Ct.  208.  inson  v.  Burton,  5  Kansas,  293. 

-  Whitney  v.  Brunette,  15  Wisconsin, 
61. 

[106] 


CHAP.  YI.]  ATTACHMENT  BONDS.  §  115 


CHAPTER   VI. 

attach:ment  bonds. 

§  114.  In  many  of  the  States  it  is  required  that  a  plaintiff, 
before  obtaining  an  attachment,  shall  execute  a  bond,  with  secu- 
rity, for  the  indemnification  of  the  defendant  against  damage  by 
reason  of  the  attachment.  The  terms  of  such  instruments  vary, 
but  that  is  their  usual  scope.  Sometimes,  in  order  to  protect 
defendants  who  do  not  appear  to  the  action,  a  clause  is  added  in 
the  condition,  that  the  plaintiff  shall  refund  to  the  defendant  any 
money  recovered  by  means  of  the  attachment,  which  was  not 
justly  due  to  him.  This  is  merely  giving,  at  the  institution  of  the 
suit,  what,  by  the  custom  of  London,  the  plaintiff  is  required  to 
give  at  its  termination,  in  order  to  obtain  execution  against  the 
garnishee. 

§  115.  Where  the  statute  requires  a  bond  to  be  given  before 
the  attachment  issues,  a  failure  to  give  it  is  fatal  to  the  suit,  un- 
less the  law  authorize  the  defect  to  be  cured ;  and  the  omission 
may  be  taken  advantage  of  by  the  defendant,  either  upon  a  motion 
to  dismiss,  or  in  abatement,^  but  not  upon  demurrer  to  the  com- 
plaint.^ Great  strictness  has  been  manifested  on  this  point,  and 
without  doubt  very  properly;  for  if  the  officer  "could  dispense 
with  the  requisites  of  the  law,  for  a  part  of  a  day,  why  might  he 
not  for  a  whole  day,  or  many  days,  and  at  last  the  whole  be  ex- 
cused by  the  answer  that  the  defendant  was  still  secured,  and 
might  make  the  plaintiff  responsible,  who  might  be  amply  able  to 
discharge  the  damages  recovered,  although  no  bond  was  executed 
at  all  ?  "  -5 

'  Bank  of  Alabama  v.  Fitzpatrick,  4  venson  i".  Robbins,  5  Missouri,  18;  Van 

Humphreys,  311  ;  Didier  v.  Galloway,  3  Loon  »•.  Lyons,  61  New  York,  22  ;  Tiffany 

Arkansas!  001 ;  Kellogg  v.  Miller,  6  Ibid.  i-.  Lord,  65  Ibid.  310. 
468  :  Davis  ;;.  Marshall,  14  Barbour,  96 ;  -  Alexander  i-.  Pardue,  30  Arkansas, 

Kelly  V.  Arclier,  48  Ibid.  68 ;  Benedict  v.  359. 

Bray,  2  California,  251  ;  Lewis  y.  Butler,  '•'  Hucheson  v.  Ross,  2  A.  K.  Marshall, 

Kentucky  Decisions   (Sneed),  290;   Ste-  349. 

[107] 


§  116  a  ATTACHMENT   BONDS.  [CHAP.  VI. 

§  116.  In  ]\[ississippi,  the  statute  declares  that  an  attachment 
issued  ^Yithout  bond  is  void,  and  shall  be  dismissed ;  and  the 
courts  of  that  state  have  carried  out  tlie  law  rigidly;  holding  that 
the  attachment  is  absolutely  void  ;  ^  that  the  Avant  of  a  sufficient 
bond  cannot  be  cured  by  fiUng  a  proper  one  after  the  suit  is 
brought ;  ^  that  the  absence  of  a  bond  is  not  remedied  by  the  ap- 
pearance of  the  defendant  and  his  pleading  to  the  action ;  ^  and 
that  a  judgment  against  a  garnishee  who  has  answered  under  an 
attachment  issued  without  bond  is  void,*^  and  no  bar  to  a  subse- 
quent action  against  him  by  the  attachment  defendant  for  the 
same  debt.^  In  Kentucky,  where  the  bond  was  required  to  be  in 
double  the  sum  to  be  attached,  and  the  statute  declared  that 
ever}^  attachment  issued  without  such  bond  being  taken  should 
be  illegal  and  void,  the  strict  rule  was  applied,  in  cases  where  the 
bond  was  below  the  required  amount ;  and  the  attachment  was, 
on  writ  of  error  by  the  defendant,  declared  void.**  In  South 
Carolina,  however,  so  great  strictness  does  not  prevail.  There  the 
statute  declares  the  attachment  void  when  issued  without  bond ; 
but  the  courts  have  construed  the  law  to  mean  voidable  only,  and 
held  that  the  attachment  is  good  until  declared  void  on  pleading.' 
In  Ohio,  where  the  statute  provides  that  "  the  order  of  attach- 
ment shall  not  be  issued  by  the  clerk  until  there  has  been  exe- 
cuted in  his  office  an  undertaking,"  &c.,  it  was  held,  in  an  action 
where  title  to  real  estate  obtained  through  an  attachment  issued 
without  such  undertaking  having  been  filed  was  brought  in  con- 
flict with  a  title  obtained  through  a  sale  under  execution,  that 
the  attachment  was  not  void  for  want  of  the  filing  of  the  under- 
taking.^ 

§  116  a.  Whether  the  bond  was  in  fact  given  before  the  writ 
issued  is,  it  seems,  not  conclusively  determined  by  the  dates 
merely  of  the  respective  instruments  ;  but  the  fact  may  be 
shown,  that  though  the  writ  bears  date  anterior  to  the  bond,  yet 
its  date  was  a  mistake,  and  that  the  bond  was  filed  before  the 
writ  issued.'-^ 

1  Ford  V.  Hurd,  4  Smedes  &  Marshall,  5  Pord  v.  Hurd,  4  Sraedes  &  Marshall, 

683.  G83. 

-  Houston   V.   Belcher,   12    Smedes   &  '^  Martin  v.  Tliompson,   3   Bibb,  252; 

Marshall,  514.  Samuel  v.  Brito,  3  A.  K.  Marshall,  317. 

3  Tyson  v.   Hamer,  2  Howard  (Mi.),  1  Caraberford  v.  Hall,  3  McCord,  345. 

669.  8  OTarrell  v.  Stockman,  19  Ohio  State, 

*  Ford  V.  Woodward,  2  Smedes  &  Mar-  296. 
shall,  260.  s^Snelling  r.  Bryce,  41  Georgia,  513. 

[108] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  120 

§  117.  But  thougli  an  attachment  sued  out  without  sufficient 
bond  having  been  taken,  should  be  considered  absolutely  void  as 
to  the  defendant,  yet  it  Avill,  unless  the  defect  appear  on  the  face 
of  the  writ,  justify  an  officer  in  making  a  levy  under  it.  It  was  so 
held  in  Kentucky,  where,  as  stated  in  the  last  section,  the  court, 
on  writ  of  error  by  the  defendant,  held  the  attachment  void  in 
such  case.^  This  doctrine  is  certainly  correct,  as  thus  applied ; 
but  would  not  be,  if  the  law  required  the  writ  to  state  that  a  bond 
was  given,  and  it  did  not  state  it. 

§  118.  But  though 'an  officer  executing  the  writ  under  such 
circumstances  is  not  liable  as  a  trespasser,  yet  the  party  who 
causes  the  writ  to  issue  without  giving  bond,  and  the  officer  who 
issues  it,  are  both  so  liable  to  the  defendant.^  And  in  Kentucky, 
under  a  statute  which  declared  that  "the  order  of  attachment 
shall  not  be  issued  by  the  clerk  until  there  has  been  executed,  in 
his  office,  by  one  or  more  sufficient  sureties  of  the  plaintiff,  a 
bond,"  &c.,  it  was  said  by  the  Court  of  Appeals,  that  the  clerk 
is  bound  at  his  peril  to  know  that  the  surety  tendered  is  suffi- 
cient.^ 

§  119.  As  in  the  case  of  the  affidavit,  the  bond  must  aj)pear  in 
the  record  of  the  action ;  *  but,  unless  required  by  statute,  the 
omission  to  recite  in  the  writ  that  a  bond  was  given,  will  not  viti- 
ate the  attachment.-^ 

§  120.  When  it  is  required  that  a  bond  shall  be  approved  by  a 
clerk  of  court,  it  is  not  necessary  for  him  to  indorse  his  approval 
thereon  :  that  is  but  evidence  of  the  fact,  which  may  be  other- 
wise proved.*^  If  he  receives  and  files  the  bond,  he  is  estopped 
from  afterwards  denying  that  he  approved  it.^  And  as  against 
the  defendant,  the  issue  of  the  writ  is  an  approval  of  the  bond, 
as  much  as  if  the  approval  had  been  written  upon  it.^  Much 
more  is  it  so,  if  there  be  on  the  bond  a  memorandum  of  its 
acceptance,  though  not  signed  by  the  clerk,  and  the  Avrit  re- 

1  Banta  v.  Reynolds,  3  B.  Monroe,  80 ;  ^  Uays  v.  Gorby,  3  Iowa,  203  ;  Ells- 
Owens  V.  Starr,  2  Littell,  230.  worth  v.  jMoore,  5  Ibid.  486. 

2  Post,  §  411  a;  Barkeloo  v.  Randall,  ^  Mandel  v.  Peet,  18  Arkansas,  236; 
4  Blackford,  476.  Griffith  v.  Robinson,  19  Texas,  219. 

'  Home  V.  Mitchell,  7  Bush,  131.  ^  Pearson  r.  Gayle,  11  Alabama,  278. 

*  Cousins  f.  Brashear,  1  Blackford,  85.  ^  Levi  v.  Darling,  28  Indiana,  497. 

[1U9] 


§  121   a  ATTACHMENT    BONDS.  [CHAP.  VI. 

cite  the  filing  of  the  bond.^  And  his  approval  is  but  prima 
facie  evidence  of  the  sufiiciencv  of  the  sureties,  subject  to  be 
0  vev  throw  n.- 

If  a  person  holding  the  office  of  clerk  of  a  court  institute  a 
suit  by  attachment  in  that  court,  the  approval  of  the  bond  by 
his  deputy  is  of  no  value  ;  the  bond  is  a  nullity  in  sustaining 
the  attachment.-^ 

§  121.  The  bond  must  be  actuaUi/  executed  and  delivered  before 
the  writ  issues.  It  will  not  answer  for  the  party  to  prepare  what 
may  be  made  into  the  required  instrument,  and  leave  it  incom- 
plete. Therefore,  where  it  appeared  that  the  plaintiff,  before  the 
writ  issued,  filed  with  the  clerk  a  half  sheet  of  paper,  upon  which 
he  and  another  person  had  signed  their  names,  bttt  that  the  paper 
was  otherwise  blank,  it  was  decided  that,  as  the  ceremonies 
necessary  to  a  bond  consist  of  ivriting,  sealing,  and  deliven/,  none 
of  which  existed  in  this  case,  there  was  no  bond,  and  the  wiit 
was  quashed.^  So  where  the  bond  was  in  every  respect  in  con- 
formity to  law,  except  that  it  was  not  sealed.^ 

§  121  a.  When  a  bond  is  executed  by  the  plaintiff',  and  deliv- 
ered to  the  officer  who  is  to  issue  the  attachment,  no  agreement 
between  them  as  to  any  condition  subsequent,  upon  which  the 
bond  was  to  become  unavailable  in  the  case,  can  have  any  effect 
upon  the  right  of  the  attachment  defendant  to  recover  thereon. 
Thus,  where  the  plaintiff,  at  the  time  of  obtaining  an  attachment, 
executed  a  bond  and  left  it  with  the  officer,  with  the  condition 
and  agreement  that  the  officer  might  use  it  as  the  basis  of  an 
attachment  in  case  the  plaintiff  failed  to  produce  a  decision  of  the 
Supreme  Court  that  such  bond  was  unnecessary  ;  and  that  it 
was  not  to  be  so  used  unless  the  plaintiff"  so  failed ;  and  within 
twenty-four  hours  thereafter  the  officer  issued  the  attachment ; 
and  afterwards  the  plaintiff  produced  to  him  a  decision  of  the 
Supreme  Court  to  the  effect  stipulated  :  whereupon  the  officer 
delivered  the  bond  up  to  the  plaintift'.  a\1io  destroyed  it :  and 
afterwards  the  attachment  defendant  sued  upon  it  :  it  was  held, 

1  Howard  r.  Oppenheimer,  io  Marv-  125 ;    Perminter    r.     McDauiel,    1    Hill 

land,  350.  '  (S.  C),  267. 

•-  Blaney  v.  Findley,  2  Blackford,  338.  ^  State  v.  Thompson.  49  Missouri,  1S8  ; 

3  Owens  V.  Johns,  59  Missouri,  80.  State  v.  Chamberlin,  54  Ibid.  338. 
<  Bord   V.   Bovd,   2  Xott  &  McCord, 

'[110] 


CHAP.  VI.]  ATTACHJIEyT    BONDS.  §  123 

that  the  defendant's  right  of  action  upon  it  ^vas  not  affected  by 
the  agreement  between  the  plaintiff  and  the  officer.^ 

§  121  h.  It  wouhl  hardly  seem  probable  that,  under  any  system 
of  attachment  laws,  the  presence  in  which  the  bond  is  executed 
could  be  considered  material ;  but  it  is  so  regarded  in  Kentucky, 
under  a  statute  declaring  that  "  the  order  of  attachment  shall 
not  Ije  issued  by  the  clerk  until  there  has  been  executed,  in  his 
office,  a  bond  to  the  effect,"  &c.  It  \vas  held,  that  unless  the 
bond  was  executed  m  the  'presence  of  the  clerk,  it  w^as  unauthor- 
ized, and  that  the  order  of  attachment  was  improperly  issued.^ 

§  122.  If  the  bond  be  actually  executed,  according  to  the 
statutory  requirement,  but  before  its  return  into  court  it  be  acci- 
dentally destroyed,  the  failure  to  return  it  will  not  be  a  cause  for 
quashing  the  attachment,  though  the  statute  require  it  to  be 
returned.^  Nor  will  the  failure  of  the  officer  to  return  it 
into  court  authorize  the  attachment  to  be  dissolved,  if  no  blame 
be  chargeable  to  the  plaintiff. 


'4 


§  123.  If  it  appear,  from  the  date  or  recitals  in  the  bond,  that 
it  was  not  executed  until  after  the  writ  issued,  it  will  be  fatal  to 
the  attachment,  where  its  execution,  as  is  usually  the  case,  is  a 
condition  precedent  to  the  issue  of  the  writ.'^  Therefore,  where 
the  attachment  and  bond  bore  date  on  the  same  day,  and  the 
bond  recited  that  on  that  day  the  plaintiff  had  first  issued  or  ob- 
tained the  attachment,  the  attachment  was  quashed.^  But  where, 
under  similar  circumstances  and  similar  statutory  requirements, 
the  bond  recited  that  the  plaintiffs  "  have  this  day  sued  out  an 
attachment,"  it  was  held,  on  a  motion  to  quash,  that  though  the 
issue  of  the  writ  before  the  giving  of  the  bond  would  be  fatal, 
yet  that  the  recital  of  the  bond  was  not  evidence  of  the  fact. 
"  The  recital,"  say  the  court,  "  was  evidently  intended  to  iden- 
tify the  case  in  which  the  Ijond  was  given,  and  not  to  indicate  its 
order,  in  point  of  time,  in  the  proceedings.     Nothing  more  was 

1  Bennett  v.  Brown,  20  New  York,  99.  sissippi,  G67  ;  State  Bank  v.  Ilinton,   1 

2  Home  V.  Mitchell,  7  Bush,  131.  Devereux,  397. 

3  Wheeler  v.    Slavens,   13   Smedes  &  '  Oshorn  v.  Schiffer,  37  Texas,  434. 
Marshall,  623.                                                        '"'  Hucheson  v.  Ross,  2  A.  K.  Marshall, 

i  Bank  of  Augusta  v.  Conrey,  28  Mis-     349  ;  Koot  v.  Monroe,  5  Blackford,  594. 

[Ill] 


§124  ATTACHMENT   BONDS.  [CHAP.  VI. 

meant,  or  is  necessarily  to  be  inferred  from  it,  than  that  it  was 
intended  as  the  bond  required  to  be  given  in  the  case,  wherein 
the  phiintiffs  had  instituted  proceedings,  by  filing  their  petition 
and  making  affidavit  for  tlie  purpose  of  suing  out  an  attachment ; 
not  tliat  the  writ  had  actually  been  issued  by  the  clerk  already. 
That  is  not  a  necessary,  nor,  when  it  is  considered  that  it  would 
have  involved  the  violation  of  duty  by  the  clerk,  is  it  a  probable 
conclusion."  ^  And  so,  where  the  condition  of  the  bond  required 
the  plaintiff  to  prosecute  to  effect  an  attachment  "  granted,"  and 
the  bond  and  the  attachment  were  of  the  same  date,  the  court 
considered  it  unnecessary  to  set  forth  in  the  bond  that  it  was 
taken  before  granting  the  Avrit,  but  that  would  be  presumed. 
"  The  object  of  the  law,"  said  the  court,  "  was  to  prevent  an  at- 
tachment from  being  issued  without  giving  the  defendant  the 
security  afforded  by  the  bond,  and  the  least  possible  division  of 
time  is  a  sufficient  priority.  If  the  law  has  been  substantially 
fulfilled,  the  court  will  not  permit  the  object  to  be  defeated,  be- 
cause the  phraseology  of  some  part  of  the  proceedings  may  not 
be  critically  correct."  ^ 

But  though  the  recital  of  a  bond  should  indicate  that  the 
attachment  had  been  previously  obtained,  it  will  not  be  sufficient 
to  quash  the  writ,  if  it  appear  on  inspection  of  the  record  that 
the  writ  was  in  fact  subsequently  issued.  This,  however,  could 
not  be  shown  by  parol  evidence.'^ 

§  124.  The  sufficiency  of  the  bond  to  sustain  the  attachment 
may  be  questioned,  either  as  to  its  terms,  parties,  or  amount.  If 
there  be  a  bond,  but  not  such  as  the  law  requires,  it  will  be  the 
same  as  if  there  were  no  bond,  unless  an  amendment  of  it  be 
authorized  by  statute."^  A  substantial  compliance  with  the  stat- 
ute, however,  seems  to  be  in  general  sufficient.^  And  if  a  word 
be  omitted  by  mistake  from  the  bond,  and,  by  looking  at  the 
whole  instrument  and  the  statute  under  which  it  is  given,  it  is 
apparent  what  word  was  intended  to  be  inserted,  the  omitted 

1  Wright  V.  Eagland,  18  Texas,  289.  •*  Bank  of  Alabama  v.  Fitzpatrick,  4 
See  McClanahan  v.  Brack,  46  Missis-  Humphreys,  311 ;  Houston  v.  Belcher, 
sippi,  246.  12   Smedes  &  Marshall,    514;    Hisler   v. 

2  McKenzie  i-.  Buchan,  1  Nott  &  Mc-  Carr,  34  California,  641  ;  Kelly  v.  Archer, 
Cord,  205.  48  Barbour,  68. 

3  Summers  v.  Glancey,  3  Blackford,  5  O'Neal  y.  Owens,  1  Haywood  (N.  C), 
361;  Reed  I'.  Bank  of  Kentucky,  5  Ibid.  362;  Leach  v.  Thomas,  2  Nott  &  Mc- 
227.  Cord,  110. 

[11-2] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  127 

word  ma}'  be  supplied,  and  the  contract  read  as  if  it  had  been  ex- 
pressed, without  first  reforming  it  by  supplying  the  omitted 
word.i  But  whatever  objections  the  defendant  may  have  to  the 
bond  should  be  presented  before  he  pleads  to  the  merits  ;  ^  unless 
the  law  authorize  a  new  bond  to  be  required,  where  the  surety 
becomes  insolvent  after  its  execution.  In  that  case,  the  fact  may 
be  shown  after  pleading  to  the  merits.^ 

§  125.  As  to  the  Terms  of  the  Bond.  A  statute  requiring  a 
bond  in  a  stated  penalty,  with  a  specified  condition,  is  not  com- 
plied with  by  the  execution  of  an  unsealed  stipulation  ;  *  nor  is  it 
met  by  the  execution  of  a  covenant,  by  which  the  plaintiff  and 
his  security  promise  to  pay  to  the  defendant  the  amount  of  the 
penalty  stated  in  the  statute,  or  all  damages  and  costs  he  may 
sustain  by  reason  of  the  issue  of  the  attachment.^  And  if  such 
an  instrument  be  declared  on  as  a  bond  with  a  condition,  and  a 
breach  thereof  be  assigned,  when  it  is  produced  on  the  trial  the 
variance  will  be  fatal.^ 

§  126.  When  a  statute  in  one  clause  provides  what  shall  be  the 
condition  of  the  bond,  and  in  another  sets  forth  the  forin  of  the 
condition,  the  proper  course  is  to  follow  the  form,  without  regard 
to  the  language  of  the  statute  elsewhere.'  Indeed,  it  has  been 
decided,  that  if  the  bond  follow  the  language  of  the  statute 
instead  of  the  form  prescribed,  when  they  are  variant  from  each 
other,  it  will  be  void.'^ 

§  127.  To  state  in  the  bond  that  the  suit  is  brought  in  a  court 
other  than  that  in  which  it  is  brought,  is  a  fatal  error  ;  '^  as  is  like- 
wise an  omission  to  name  the  court ;  ^^  but  a  misrecital  in  a  bond 
of  the  term  of  the  court  to  which  the  attachment  is  returnable, 
does  not  vitiate  it:  the  affidavit  and  the  writ  control  the  terms  of 
the  iustrument.i^     But  where  the  bond  recited  the  time  Avhen  the 

1  Frankol  I.'.  Stern,  44  California,  168.  man),   303;   Lucky  i-.   Miller,  8  Yerger, 

•■!  Hart  V.  Kanady,  33  Texas,  720.  90. 

3  Ealer   v.   McAllister,    14   Louisiana  8  Mclntyre  r.  White,  5  Howard  (Mi.), 

Annual,  821.  298 ;  Amos  v.  AUnutt,  2  Smedes  &  Mar- 

*  Van   Loon  v.  Lyons,  61  New  York,  shall,  215;  Proskey  r.  West,  8  Ibid.  711. 

22 ;  Tiffany  v.  Lord,  6-5  Ibid.  310.  '■>  Bonner  v.  Brown,  10  Louisiana  An- 

^  Iloman    r.    Brinckerhoff,    1    Dcnio,  nual,  334. 

184.  10  Lawrence  v.  Yeatman,  3  Illinois  (2 

6  Rochefeller   v.  Hoysradt,  2  Hill  (N.  Scainnion),  15. 

Y.),  610.  ^^  Houston  v.   Belcher,  12    Smedes    & 

''  Love  V.  Fairfield,  10  Illinois  (5  Gil-  Marsliall,  514. 

8  [n3] 


§  131  ATTACHMENT  BONDS.  [CHAP.  VI. 

court  was  to  be  held,  as  "  the  first  Monday  m  June,"  without 
designating  it  as  the  next  county  court,  it  was  considered  defective, 
but  amendable.^  And  so,  where  the  bond  was  dated  on  the  4th 
day  of  January,  1836,  and  recited  the  attachment  as  returnable 
"  to  the  county  court  to  be  held  on  the  third  Monday  of  January, 
instant,"  while  the  attachment  bore  date  the  4th  of  January, 
1838,  the  bond  was  considered  defective.- 

§  128.  It  is  no  objection  to  a  bond  that  it  is  not  dated,  where  a 
date  is  not  required  by  statute  to  be  named  in  it.^ 

§  129.  An  insufficient  description  of  the  parties,  or  tlie  suit, 
will  vitiate  the  bond.  Thus,  where  the  obligors  acknowledge 
themselves  bound,  "  conditioned  that  A.  B.  plaintiff  in  attach- 
ment against defendant  will  prosecute,"  &c.,  it  was  held, 

that  the  attachment  could  not  be  sustained.* 

§  130.  While  any  substantial  departure  from  a  prescribed  form, 
or  omission  from  the  instrument  of  terms  required  by  the  statute, 
will  be  fatal  to  the  action,  unless  remediable  by  amendment,  the 
addition  of  terms  not  required  will  not  have  that  effect.  Thus, 
where  a  bond  contained  all  the  requisite  conditions,  with  the  fur- 
ther one,  "  that  the  plaintiff  shall  prosecute  his  attachment  with 
effect  at  the  court  to  which  it  is  returnable ; "  it  was  held,  that 
this  did  not  authorize  the  attachment  to  be  dismissed.^  So  where, 
in  addition  to  the  legally  required  terms,  the  clerk  inserted  in  the 
bond  the  words  "  shall,  moreover,  abide  by  and  perform  such 
orders  and  decrees  as  the  court  may  make  in  the  cause ; "  these 
words  were  held  void,  and  were  rejected  as  surplusage.^  So, 
where  the  bond  was  required  to  be  made  to  the  State  of  Arkan- 
sas, and  a  bond  was  made  to  that  State,  "  for  the  use  and  benefit 
of  the  defendant ;  "  those  words  were  treated  as  surplusage, 
not  affecting  the  validity  of  the  bond." 

§  131.  As  to  the  Parties  to  the  Bond.  If  it  be  required  that  the 
bond  be  given  by  the  plaintiff,  and  no  provision  exist  for  its  being 

1  Planters  &  Merchants'  Bank  v.  An-  '"  Kalin  v.  Herman,  3  Georgia,  26G. 
drews,  8  Porter,  404.  6  Ranning    v.    Reeves,   2    Tennessee 

2  Lowry  v.  Stowe,  7  Porter,  483.  Ch'y,  263. 

3  Plunipton  V.  Cook,  2  A.  K.  Mar-  '^  Steamboat  Napoleon  v.  Etter,  6 
shall,  4.50.  Arkansas,  108. 

4  Schrimpf  v.  McArdle,  13  Texas,  368. ' 

[114] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  132 

given  by  any  other  person,  a  bond  executed  by  a  stranger  to  the 
suit  will  be  invalid.  This  was  so  held,  where  the  statute  declared 
that  no  writ  of  attachment  should  issue  "  before  the  jilaintiff  has 
given  bond  ;  "  ^  and  also  under  a  statute  requiring  bond  to  be 
taken  of  "  the  party  for  whom  the  attachment  issued."  ^  This 
rule,  however,  is  to  be  applied  within  its  reason,  and  not  arbitra- 
rily and  literall}^  without  regard  to  circumstances.  Therefore, 
where  bond  was  required  to  be  taken  from  "  the  party  plaintiff," 
a  bond  executed  by  one  to  whose  use  the  suit  was  brought,  was 
considered  as  within  the  meaning  of  the  statute.^  And  so,  under 
a  statute  providing  that  "  the  creditor  shall  likewise  file  with  the 
clerk  a  bond  to  the  defendant  with  sufficient  security,"  a  bond 
was  signed  in  the  plaintiff's  name  by  an  agent  having  no  author- 
ity therefor,  and  by  competent  sureties ;  and  it  was  held  suffi- 
cient, though  not  the  act  of  the  plaintiff,  because  the  reason  of 
the  law  was  satisfied  by  the  sufficiency  of  the  security."^  But 
where,  under  a  law  requiring  bond  to  be  taken  of  "  the  party  for 
whom  the  attachment  issued,"  and  an  attorney  at  law  executed 
the  bond  in  his  own  name,  conditioned  that  he  should  pay  and 
satisfy  all  costs  which  should  be  awarded  to  the  defendant,  in  case 
he  should  be  cast,  &c. ;  the  bond  Avas  held  bad,  and  the  attach- 
ment set  aside. ° 

§  132.  Though  the  plaintiff  is  usually  required  to  execute  the 
bond,  j^et  as  that  might  often  be  impraeticable,  it  is  generally  pro- 
vided that  it  may  be  done  by  his  agent,  attorney,  or  other  person. 
In  such  case  the  word  attorney  in  the  statute  will  be  considered 
to  include  an  attorney  at  law,  as  well  as  an  attorney  in  fact ;  ^  and 
it  is  held,  that  one  acting  in  the  former  capacit3%  in  the  collection 
of  a  debt  in  a  State  where  he  is  authorized  to  practise  law,  may, 
as  an  incident  of  his  employment,  execute  the  bond  in  the  name 
of  his  client.  In  the  language  of  the  Supreme  Court  of  Louisiana, 
"  the  signing  of  the  bond  is  an  act  of  administration  alone,  indis- 
pensable to  secure  the  rights  of  the  client,  and  is  fully  conferred 
by  the  mandate  in  general  terms.     The  mandate  is  to  collect  his 

1  Myers  v.  Lewis,  1  McMullan,  54.  ■*  Taylor  v.  Ricards,  9  Arkansas,  378. 

-  Mantz  V.  liendley,  2  Ilening  &  Mun-  ^  Mantz  v.  Hendley,  '2  Hening  &  Mun- 

ford,  308.  ford,  308. 

3  Grand  Gulf  R.  R.  &  B.  Co.  v.  Con-  «  Trowbridge   v.    Weir,    6    Louisiana 

ger,  0  Smedes  &  Marshall,  505 ;  Murray  Annual,  706. 
V.  Cone,  8  Porter,  250. 

[115] 


§  133  ATTACHMENT   BONDS.  [CHAP.  VI. 

debt  by  process  of  law.  If  no  agent  or  attorney  in  fact  is  consti- 
tuted, the  attorney  at  law  is  the  mandatary  for  this  purpose.  The 
signing  of  the  attachment  bond  is  a  necessary  incident  to  the  col- 
lection of  the  debt,  and  is  embraced  in  the  general  power  to  make 
the  collection."  But  the  same  court  refused  to  extend  this  doc- 
trine to  the  case  of  an  attorney  at  law  from  another  State,  who 
was  not  licensed  to  practise  in  the  courts  of  Louisiana.^ 

Under  statutes  of  similar  import,  it  is  held,  that  a  bond  signed 
by  one,  as  principal,  styling  himself  agent  of  the  plaintiff,  is  a 
compliance  with  the  statute  ;  ^  and  this  view  was  taken  also  in 
cases  where  he  did  not  so  style  himself,  but  signed  the  bond 
simply  in  his  personal  capacity .^ 

In  Florida,  under  a  statute  providing  that  "  before  the  issuing 
of  any  writ  of  attachment,  the  party  applying  for  the  same  shall 
by  himself,  his  agent,  or  attorney,  enter  into  bond  with  two  or 
more  securities,"  a  bond  executed  by  an  agent  of  the  plaintiff,  in 
his  own  name  as  agent,^  or  by  the  attorney  who  instituted  the 
suit,  in  his  own  name  as  attorney,^  was  held  a  sufficient  compli- 
ance with  the  law  :  but  that  a  bond  executed  by  the  plaintiff's 
agent  in  his  own  name,  without  describing  himself  as  agent, 
though  he  was  so  described  in  the  affidavit,  was  fatally  defective.^ 

§  183,  Where  the  bond  purports  to  be  the  act  of  the  plaintiff, 
by  an  attorney  in  fact,  the  court  will  not  hold  it  a  nullity  because 
no  power  of  attorney  under  seal  is  produced  :  "*  but  the  authority 
of  the  attorney  will  be  presumed,  on  the  hearing  of  a  motion  to 
quash  the  writ  on  account  of  the  insufficiency  of  the  bond.  If 
it  be  intended  to  question  the  authority,  it  must  be  done  by  plea 
to  that  effect ;  ^  for  the  agent's  authority  is  a  matter  of  evidence 
aliunde^  and  forms  no  part  of  the  bond  ;  and  on  a  motion  to 
quash  or  dismiss,  the  court  will  not  inquire  into  the  fact  of 
agency,  but  presume  it.^      The  utmost  extent  to  which  the  court 

1  Wetmore  v.  DafBn,  5  Louisiana  An-  "  Wood  v.  Squires,  28  Missouri,  528. 
nual,  49G.                                                               ^  Alford  v.   Johnson,  9   Porter,   320 ; 

2  Dillon  V.  Watkins,  2  Speers,  445 ;  Messner    v.  Hutchins,    17    Texas,    597  ; 
Walbridge  v.  Spalding,  1  Douglass,  451;  Wright  v.  Smith,  19  Ibid.  297. 
Stewart  v.  Katz,  30  Maryland,  334.  ^  Lindner  v.  Aaron,  5  Ploward  (Mi.), 

3  Frost  V.  Cook,  7  Howard  (Mi.),  357;  581;  Spear  v.  King,  G  Smedes  &  Mar- 
Page  t'.  Ford,  2  Smedcs  &  Marshall,  26G;  shall,  276 ;  Jackson  v.  Stanley,  2  Ala- 
Clanton  u.  Laird,  12  Ibid.  568.  bania,   326;  Goddard  v.   Cunningham,  6 

4  Conklin  v.  Goldsmith,  5  Florida,  280.  Iowa,  400  ;  Wright  v.  Smith,  19  Te.xas, 

5  Simpson  r.  Knight,  12  Florida,  144.  297;    Messner   v.   Lewis,   20    Ibid.    221; 

6  Work  v.  Titus,  12  Florida,  628.  McDonald  v.  Fist,  53  Missouri,  843. 

[116] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  134  a 

would  go  in  such  a  case,  would  be  to  rule  the  party  to  produce 
within  a  reasonable  time  the  power  of  attorney  under  which  he 
acted. ^ 

In  cases  of  this  description,  showing  the  agent  to  have  had  no 
authority  to  execute  the  bond,  is  no  ground,  of  itself,  for  abating 
the  action  ;  but,  shown  in  connection  with  the  further  fact,  that 
the  agent  had  no  authority  for  instituting  the  suit,  and  that  the 
suit  is  not  prosecuted  with  the  authority  or  consent  of  the  plain- 
tiff, it  would  be.- 

§  134.  Whether  a  subsequent  ratification  by  the  plaintiff,  of 
an  unauthorized  act  of  a  party  in  signing  his  name  to  the  bond, 
will  remedy  the  defect,  has  been  differently  decided.  In  Louisi- 
ana, it  is  held  in  the  negative. ^  But  in  the  case  from  Mississippi, 
cited  in  the  last  section,^  it  will  be  observed,  that,  to  defeat  the 
action  on  account  of  want  of  authority  in  the  agent,  it  must  be 
shown,  likewise,  that  he  had  no  authority  for  instituting  the  suit, 
and  that  the  suit  is  not  prosecuted  with  the  authority  or  consent 
of  the  plaintiff.  Afterwards,  in  the  same  State,  it  was  expressly 
decided,  that  if  the  plaintiff  appear  and  prosecute  the  action,  it 
will  be  considered  a  recognition  of  the  agent's  authority,  so  as 
to  sustain  the  suit.^  And  in  Arkansas,  a  subsequent  ratification 
by  the  plaintiff  will  sustain  the  bond,  and  a  plea  in  abatement 
alleging  want  of  authority  in  the  agent,  is  insufficient,  unless  it 
exclude  the  conclusion  that  a  ratification  has  taken  place.^  And 
in  Texas,  if  the  suit  should  be  abated  because  the  agent  had  no 
authority,  the  plaintiff  will,  nevertheless,  be  liable  on  the  bond, 
if  the  agent  acted  at  his  instance,  and  was  afterwards  sustained 
by  him  in  the  prosecution  of  the  suit.' 

§  134  a.  If  the  statute  require  a  bond  to  be  given  "  with  sure- 
ties," but  without  designating  how  many,  will  a  bond  with  one 
sure t}"  be  sufficient?  This  question  came  up  in  Iowa,  where  it 
was  held,  that  the  attachment  could  not  be  quashed  because 
there  was  only  one  surety  in  the  bond.  The  court  called  to  its 
aid  a  provision,  of  the  Code  of  that  State,  that  "  words  importing 

1  Lindner  v.  Aaron,  5  Howard  (Mi.),  ■*  Dove  v.  Martin,  23  Mississippi,  588. 

581.  5  Bank  of  Augusta  v.  Conrey,  28  Mis- 

^  Dove  V.  Martin,  23  Mississippi,  588.  sissippi,  6(J7. 

3  Grove  v.  Harvey,  12  Robinson  (La.),  *'  Mandel  v.  Peet,  18  Arkansas,  236. 

221.  '  Peiser  v.  Cushman,  13  Texas,  3U0. 

[117] 


§136 


ATTACHMENT  BONDS. 


[chap.  VI. 


the  singular  number  only  may  be  extended  to  several  persons  or 
things,  and  words  importing  the  plural  number  only  may  be  ap- 
plied to  one  person  or  thing;"  and  held,  that,  as  the  object  of 
the  law  is  to  afford  indemnity  to  the  defendant  lor  the  wrongful 
suing  out  of  the  attachment ;  and  as  this  may  be,  and  often  is, 
as  effectually  done  by  one  as  by  a  half-dozen  securities ;  and  as 
it  was  the  business  of  the  clerk  who  took  the  bond  to  see  that 
the  surety  was  sufficient  ;  the  law  was  in  effect  complied  with  by 
the  presentation  of  one  surety.^ 

§  13-1:  h.  Under  a  statute  requiring  the  plaintiff  to  "  enter  into 
bond  with  two  good  and  sufficient  securities,  payable  to  the  de- 
fendant, in  at  least  double  the  debt  or  sum  demanded,"'  each  of 
the  two  sureties  justified  in  an  amount  equal  to  that  sworn  to  ; 
and  the  defendant  moved  to  dismiss  the  attachment  because  each 
had  not  justified  in  double  that  amount ;  but  it  was  held,  that 
the  bond  was  sufficient,  in  the  absence  of  evidence  showing  that 
the  securities  were  not  good  for  the  amount  of  its  penalty.- 


§  134  c.  Where  the  statute  requires  a  bond  "  with  good  secu- 
rit}^  in  an  amount  at  least  double  the  debt  sworn  to,"  the  secu- 
rities in  the  bond  must  be  good  for  its  whole  amount ;  and  if 
proceedings  to  verify  the  sufficiency  of  the  bond  be  taken,  and 
the  sureties  be  found  not  to  be  good  for  that  amount,  but  to  be 
good  for  a  smaller  amount,  it  is  not  admissible  for  the  plaintiff 
to  amend  by  reducing  his  demand,  so  that  the  amount  for  which 
the  sureties  are  found  to  be  good  shall  be  double  the  amount 
claimed  after  the  reduction.^ 

§  135.  Where  the  law  required  the  sureties  in  the  bond  to  be 
residents  of  the  State,  it  was  considered  unnecessary  to  state  in 
the  instrument  that  they  were  so  :  the  fact  would  be  presumed.* 

§  136.  It  is  no  objection  to  a  bond  given  in  a  suit  by  a  copart- 
nership, that  the  partnership  name  was  signed  to  it  by  one  of  the 
firm,  instead  of  the  individual  names  of  the  several  partners.  If 
not  binding  on  all  the  partners,  it  is  on  him  who  signed  it.'^  And 
where  the  undertaking  was  not  under  seal,  and  the  plaintiffs  were 


1  Elliott  V.  Stevens,  10  Iowa,  418. 

2  May  V.  Gamble,  14  Florida,  467. 

3  Lockett  V.  Neufville,  55  Georgia,  454. 

[118] 


*  Jackson  v.  Stanley,  2  Alabama,  326. 
5  Thatcher  v.  Goff,  13  Louisiana,  360; 
Dow  V.  Smith,  8  Georgia,  551. 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  139 

a  partnership,  and  the  sureties  were  also,  and  they  signed  in  their 
respective  partnership  names,  the  undertaking  was  held  suffi- 
cient.^ 

Under  a  statute  requiring  a  bond  to  be  taken  of  "  the  party 
for  whom  the  attachment  issued,"  it  was  considered,  in  a  suit  by 
a  mercantile  firm,  that  a  bond  entered  into  by  one  of  the  firm  in 
his  own  name,  was  sufficient,  where  it  appeared  in  the  instrument 
that  he  executed  it  as  one  of  the  firm,  and  sufficiently  described 
the  suit  as  being  by,  and  for  the  benefit  of,  the  firm.^  But 
where  the  bond  recited  that  the  individual  partner  had  sued  out 
the  attachment,  and  was  conditioned  that  if  he  should  be  cast  in 
the  suit,  he  should  pay  all  costs  and  damages  recovered  against 
him  for  suing  out  the  writ,  it  was  decided  that  the  bond  was  not 
in  compliance  with  the  statute,  and  the  attachment  was  quashed.^ 

§  137.  The  statutes  of  the  different  States  vary,  as  to  who 
shall  be  named  as  obligee  in  the  bond.  In  some  States,  it  is  the 
defendant ;  in  others,  the  bond  is  payable  to  the  State,  with  stat- 
utory provision  for  suit  on  it  in  the  name  of  the  State,  to  the  use 
of  the  party  injured.  In  the  latter  case,  it  could  not  well  be  that 
any  mistake  should  be  made  in  naming  the  obligee  ;  but  other- 
wise in  the  former ;  and  it  is  important  to  avoid  errors  on  this 
point,  as  they  would,  if  made  in  a  material  particular,  be  fatal  to 
the  attachment.  Thus,  where  an  attachment  was  issued  against 
a  firm  by  its  copartnership  name,  and  the  bond  was  given  to 
two  persons  as  individuals,  who,  though  of  the  same  surnames  as 
those  constituting  the  firm,  were  yet  not  described  in  the  bond 
as  being  the  partners  of  the  house  ;  it  was  held,  that  the  statute 
requiring  the  bond  to  be  "  payable  to  the  defendant "  was  not 
complied  with,  and  the  attachment  was  quashed.* 

§  138.  As  to  the  Amount  of  the  Bond.  This  is  in  all  cast's 
regulated  by  statute ;  and  the  importance  of  correctness  in  this 
respect  is  so  manifest,  and  the  means  of  exactness  so  simple,  that 
few  questions  have  arisen  in  reference  to  it. 

§  139.  It  is  no  objection  that  the  bond  is  in  a  greater  sum  than 

1  Danforth   v.    Carter,    1    Iowa,    546  ;  ^  Jones  v.  Anderson,  7  Leigh,  308. 
Churchill  r.  Fulliam,  8  Ibid.  45.  *  Birdsong    v.   McLaren,   8    Georgia, 

2  Kyle    V.   Connelly,   3    Leigh,    710;  52L 
Wallis  V.  Wallace,  0  Howard  (Mi.),  254. 

[11<J] 


§  141  ATTACHMENT  BONDS.  [CHAP.  VI. 

is  required  by  law  ;  ^  but  if  it  be  less  it  will  be  fatal,  unless 
amendable.^ 

§  140.  In  South  Carolina,  where  the  statute  requires  the  bond 
to  be  in  double  the  amount  sued  for,  if  the  action  be  assumpsit, 
the  bond  must  be  in  double  the  sum  stated  in  the  writ ;  if  debt, 
and  the  damages  stated  in  the  writ  are  merely  nominal,  the  debt 
is  the  sum  sued  for,  and  the  criterion  of  the  amount  of  the  bond ; 
but  if  the  damages  are  laid  to  cover  the  interest  which  may  be 
due,  then  the  debt  and  damages  are  the  sum  sued  for,  and  the 
bond  must  be  in  double  that  sum.^  In  that  State  the  attach- 
ment used  to  be  obtained,  without  a  statement  under  oath  of  the 
amount  actually  sued  for,  and  there  was,  therefore,  nothing  by 
which  that  amount  could  be  fixed,  except  the  sum  claimed  in  the 
writ.^ 

§  141.  In  Louisiana,  where  the  actual  sum  claimed  by  the 
plaintiff  must  be  stated  in  the  petition  on  which  the  suit  is 
founded,  the  following  case  arose,  under  a  law  which  required 
the  bond  to  be  "  in  a  sum  exceeding  by  one  half  that  claimed  by 
the  plaintiff."  The  plaintiff,  in  order  to  obtain  the  attachment, 
swore  that  the  sum  of  $2,350,  besides  interest,  damages,  &c.,  was 
due  to  him.  Afterwards,  on  filing  his  petition,  setting  forth  his 
cause  of  action,  he  claimed  a  greater  amount,  which  resulted 
from  an  allegation  of  damages,  and  a  fixation  of  the  rate  of  inter- 
est ;  and  it  was  held,  that  his  claiming  in  his  petition  a  greater 
amount  than  in  his  affidavit,  did  not  invalidate  the  attachment, 
and  that  the  bond  being  in  a  larger  sum  hj  one  half  than  that 
named  in  the  affidavit,  was  sufiicient,  though  it  was  not  in  a 
larger  sum  by  one  half  than  that  claimed  in  the  petition.^ 

But  where  the  plaintiff  claimed  in  his  affidavit  a  certain  sum, 
with  interest  at  a  designated  rate,  from  a  given  date,  and  the 
bond  did  not  exceed,  by  one  half,  the  amount  due,  principal  and 

1  Fellows  V.  Miller,  8  Blackford,  231 ;  aside  the  attachment,  where  it  was  less 

Shockley    v.    Davis,    17    Georgia,    175 ;  than  one  dollar.     Bodet  v.  Nibourel,  25 

Bourne  v.  Hocker,  11  B.  Monroe,  21.  Louisiana  Annual,  499. 

-  Williams   v.   Barrow,    3    Louisiana,  ^  Young  v.  Grey,  Harper,  38 ;  Callen- 

57 ;  Martin   v.   Thompson,   3  Bibb,   252 ;  der  v.  Duncan,  2  Bailey,  454 ;  Brown  v. 

Samuel  v.  Brite,  3  A.  K.  Marshall,  317  ;  Whiteford,  4  llichardson,  327. 

Marnine  y.  Murphy,  8  Indiana,  272.    But  *  Brown  f.Whiteford,4  Richardson,  327. 

in  Louisiana  the  court  refused  to  notice  ^  Pope  v.  Hunter,  13  Louisiana,  306; 

the  deficiency,  as   a  ground  for  setting  Jackson  r.  Warwick,  17  Ibid.  436. 
[120] 


CHAP.  VI.]  ATTACHMENT    BONDS.  §  143 

interest,  it  was  held  to  be  fatal  to  the  attachment.  This  case 
was  distinguished  from  that  just  cited,  "  because  in  that  case  the 
affidavit  stated  a  certain  sum  as  due,  '  besides  interest,  damages, 
&c.'  The  bond  was  properly  proportioned  to  the  sum  named, 
and  it  was  considered  that  the  words  '  interest,  damages,  &c.,' 
were  to  be  disregarded,  because  neither  the  rate  of  interest,  nor 
the  time  for  which  it  ran,  was  stated."  ^  But  afterwards  the 
same  court,  in  again  affirming  their  first  position,  that  the  claim- 
ing in  the  petition  of  a  greater  sum  than  that  sworn  to,  was  not 
a  cause  for  dissolving  the  attachment,  yet  held  that  the  judgment 
could  not  be  given,  with  privilege,  for  a  greater  amount  than  that 
named  in  the  affidavit,  nor  would  the  plaintiff  be  justified  in  hold- 
ing, under  a  levy,  a  greater  amount  of  property  than  was  neces- 
sary to  cover  that  sum  and  costs.^  And  this  defect  in  the  amount 
of  the  bond  cannot  be  cured  by  filing  an  additional  bond,  suffi- 
cient in  amount  to  cover  the  additional  amount  claimed.^ 

In  Georgia,  under  a  statute  requiring  "  a  bond  in  a  sum  at 
least  equal  to  double  the  amount  sworn  to  be  due,"  the  plaintiff 
swore  that  there  was  due  him  $45.92,  besides  interest ;  and  the 
bond  was  given  for  double  the  sum  of  $45.92 ;  and  it  was  held 
sufficient.*  But  where,  under  a  statute  requiring  the  bond  to  be 
in  amount  "  at  least  double  the  sum  demanded,"  and  the  plaintiif 
swore  to  the  principal  amount  due  him,  and  also  to  a  named  sum 
for  interest  thereon  ;  and  the  bond  was  in  double  the  amount  of 
the  principal  sum  only ;  it  was,  in  Florida,  held  bad.° 

§  142.  Where  the  law  required  the  bond  to  be  in  double  the 
sum  sworn  to,  a  misrecital  in  the  bond  of  the  amount  sworn  to, 
whereby  it  appeared  that  the  bond  was  not  in  double  that  sum, 
but  less,  was  held  not  to  vitiate  the  bond,  as  the  affidavit  con- 
trolled in  ascertaining  the  true  sum.^ 

§  143.  In  all  these  cases  of  defective  or  insufficient  bond,  the 
defendant  is  usually  the  only  party  who  can  take  advantage  of 
the  defect.     A  subsequent  attaching  creditor  cannot  be  allowed 

1  Planters'  Bank   v.  Byrne,  3   Louisi-  ^  Saulter  v.  Butler,  10  Gcorj,na,  510. 

anaAnnual,  687;  Grahamv.  Burckhalter,  '"  Gallagher  v.  Cogswell,   11    Florida, 

2  Ibid.  415.  127. 

^  Fellows  V.  Dickens,  5  Louisiana  An-  "^  Lawrence  v.  Featherston,  10  Smedes 

nual,  131.  &  Marshall,  345, 

3  Graham  v.  Burckhalter,  2  Louisiana 
Annual,  415. 

[121] 


§  14G  ATTACHMENT  BONDS.  [CHAP.  VI. 

to  become  a  inirty  to  the  suit,  so  as  to  take  advantage  of  the  de- 
fect, ill  order  that  his  attachment  may  take  the  property.^ 

§  144.  As  to  the  time  when  advantage  shonkl  be  taken  by  the 
defendant  of  defects  in  the  bond,  for  the  purpose  of  defeating  the 
attachment,  the  rule  laid  down  as  to  affidavits  may  be  considered 
applicable,  that  the  exception  must  be  taken  m  limine.'^  In  Mis- 
sissippi, as  we  have  seen,^  the  defect  is  not  cured  by  appearance 
and  plea  ;  but  it  is  nowhere  else  so  held ;  and  in  South  Carolina 
the  reverse  is  the  rule.'^  It  follows  that  the  objection  comes  too 
late  in  an  appellate  court,  particularly  when  it  was  not  made  in 
the  court  below. ^  A  defendant's  ap23earance,  by  attorne3s  how- 
ever, to  move  for  the  dismissal  of  an  attachment  and  to  except 
to  the  jurisdiction  of  the  court  over  him,  is  held  not  to  be  such 
an  appearan(^  as  will  be  construed  into  a  submission  to  the  juris- 
diction.^ 

§  145.  The  extent  to  which  courts  may  make  requirements 
upon  parties  in  regard  to  bonds,  must  depend  entirely  upon  stat- 
utory authority,  except  as  to  those  matters  which  are  apparent 
on  the  face  of  the  proceedings.  If  a  bond,  legal  in  its  terms, 
parties,  and  amount,  be  given  at  the  institution  of  the  suit,  and 
accepted  by  the  proper  officer,  the  court  will  not,  without  some 
statutory  authority,  look  into  any  alleged  want  of  sufficiency  in 
the  parties.  Thus,  if  the  sureties  were  insolvent  when  they 
signed  the  bond,  or  have  since  become  so,  the  court  will  not, 
without  such  authority,  sustain  a  motion  to  require  additional 
security.'' 

§  146.  There  is  no  power  in  a  court,  except  as  conferred  by 
law,  to  allow  an  amendment  of  an  insufficient  bond ;  ^  but  this 

1  Camberford  v.  Hall,  3  McCord,  345;  Fleming  v.  Burge,  6  Ibid.  373;  Burt  v. 

McKenzie  v.  Buclian,  1  Nott  &  McCord,  Parish,  9  Ibid.  211 ;  Bretney  v.  Jones,  1 

205  ;  Wigfall  v.  Byne,  1  Richardson,  412  ;  G.  Greene,  306  ;  Miere  v.  Brush,  4  Illinois 

Van  Arsdale  v.  Krum,  9  Missouri,  397.  (3  Scammon),  21 ;  Morris  v.  Trustees,  15 

-  Garmon  v.  Barringer,  2  Devereux  &  Ibid.  266  ;  Kritzer  v.  Smith,  21  Missouri, 
Battle,  502 ;  Stoney  v.  ^McNeill,  Harper,  290. 

156  ;    Watson   v.   McAllister,    7    Martin,  •>  Bonner  v.  Brown,  10  Louisiana  An- 
368 ;  Enders  v.   Steamer  Henry  Clay,  8  nual,  334 ;  Johnson  v.  Buell,  26  Illinois, 
Robinson   (La.),  30;  Voorhees  v.   Hoag-  66.     <SV(/ cox^-a,  Whiting  v.  Budd,  5  Mis- 
land,  6  Blackford,  232;  Beecher  v.  James,  souri,  443;  Evans  v.  King,  7  Ibid.  411. 
3  Illinois  (2  Scammon),  462.  •'  Proskey  v.  West,  8  Smedcs  &  Mar- 

-  xVnte,  §  116.  shall,  711. 

*  Young  V.  Grey,  Harper,  38.  ^  Roulhac  v.  Rigby,  7  Florida,  336. 

5  Conklin  v.  Harris,  5  Alabama,  213  ; 
[12-2] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  148 

authority  is  now  given  in  several  States.  In  Missouri,  under  a 
statute  authorizing  the  court  to  "order  another  bond  to  be 
given,"  where  that  given  "  is  insufficient,  or  any  security  therein 
has  died,  or  removed  from  the  State,  or  has  become,  or  is  likely 
to  become,  insolvent,"  a  bond  was  given,  which  was  defective, 
through  the  omission  of  a  material  clause  in  the  condition,  and 
leave  was  given  the  plaintiff  to  file  an  amended  bond.  It  was 
contended  that  such  an  amendment  was  not  contemplated  by  the 
statute,  but  that  the  insufficiency  must  be  for  the  reason  either 
that  the  security  had  died  or  removed  from  the  State,  or  had  be- 
come, or  was  likely  to  become,  insolvent ;  but  it  was  held,  that 
if  such  was  the  intention  of  the  legislature,  the  words  "  that  the 
bond  given  by  the  plaintiff  is  insufficient "  might  as  well  have 
been  omitted ;  and  that  the  amendment  was  rightly  permitted. ^ 

§  147.  Under  a  statute  which  provided  that  "the  plaintiff, 
before  or  during  the  trial,  should  be  permitted  to  amend  any  de- 
fects of  form  in  the  original  papers,"  it  was  held,  that  a  defective 
bond  might  be  amended  by  the  substitution  of  a  new  and  perfect 
one ;  ^  and  that  a  defect  in  the  bond  would  not  be  a  sufficient 
cause  for  quashing  the  proceedings,  unless  an  opportunity  were 
given  to  the  plaintiff  to  execute  a  perfect  bond,  and  he  declined 
doing  so.^ 

§  148.  Where  this  right  to  amend  is  given,  it  makes  no  differ- 
ence whether  the  bond  be  void  or  only  defective :  in  either  case 
it  is  the  duty  of  the  court  to  permit  the  plaintiff  to  substitute  a 
sufficient  bond.*  But  the  application  to  amend  must  contemplate 
the  removal  of  all  the  objections  to  the  bond,  or  the  refusal  to 
allow  amendment  will  not  be  error.  Therefore,  where  the  bond 
was  without  seals  to  the  names  of  the  principal  and  surety,  and 
the  principal  asked  leave  to  affix  a  seal  to  his  own  name,  which 
was  refused  ;  and  the  attachment  was  quashed  for  want  of  sufficient 

1  Van  Arsdale  r.  Krum,  9  Missouri,  Beardslee  v.  Morgan,  29  Ibid.  471 ;  Hen- 

397.  derson  v.  Drace,  30  Ibid.  358  ;  McDonald 

^  Lowry  v.  Stovve,  7  Porter,  483.  v.  Fist,  53  Ibid.  343  ;  Oliver  v.  Wilson, 

■^  Planters  &  Merchants'  Bank  i\  An-  29  Georgia,  G42 ;   Irvin    c.    Howard,    37 

draws,  8  Porter,  404;  Lowe  v.   Derrick,  Ibid.  18. 

9  Ibid.  415  ;  Tevis  v.   Huglies,   10   Mis-  ■*  Jackson  v.  Stanley,  2  Alabama,  326  ; 

souri,  380  ;   Scott  v.   Macy,  3  Alabama,  Conklin  v.   Harris,  5    Ibid.  213 ;   Jasper 

250;  Lea  v.  Vail,  3  Illinois  (2  Scammon),  County  v.  Clienault,  38  Missouri,  357. 
473 ;  Wood  v.  Squires,  28  Missouri,  528 ; 

[1-23] 


§  l.")l  ATTACHMENT   BONDS.  [CHAP.  VI. 

bond :  it  was  held  not  to  be  error,  because,  if  the  seal  had  been 
athxed  to  his  name,  tlie  bond  would  still  have  been  insufficient, 
from  the  want  of  a  seal  to  that  of  the  suret}' .^ 

§  148  a.  When  a  plaintiff  has  obtained  leave  to  file  an  amended 
bond,  and  has  done  so,  it  is  substituted  for  that  originally  given, 
and  has  the  effect  of  sustaining  the  attachment  from  the  com- 
mencement of  the  action,  and  is  to  be  treated  as  the  defendant's 
security  from  that  time.^ 

§  149.  Where  the  plaintiff  needs  the  testimony  of  a  surety  in 
his  bond,  he  will  be  allowed,  if  no  liability  on  the  bond  has  already 
accrued,  to  substitute  a  new  surety.^ 

§  150.  The  errors  and  defects  of  attachment  bonds,  however 
they  might  affect  the  attachment  suit,  do  not  impair  the  liability 
of  the  obligors  to  the  defendant.  Upon  them  the  obligation  con- 
tinues, though  the  attachment  might  have  been  quashed  because 
of  the  insufficiency  of  the  instrument,  either  as  to  amount,  terms, 
or  the  time  of  its  execution.  Thus,  though  a  bond  be  not  taken 
until  after  the  writ  is  issued, —  which  we  have  seen  is  a  proper 
ground  for  quashing  the  writ,^  —  the  obligors  cannot  set  up  that 
fact  as  a  defence  to  an  action  on  the  instrument.^  But  if  it  be  not 
given  till  after  the  suit  is  dismissed,  it  is  wholly  void.°  And  the 
omission  from  a  bond  of  a  part  of  the  required  condition  does  not 
invalidate  it  as  against  the  obligors,  but,  to  the  extent  it  goes,  it 
is  valid." 

• 

§  151.  Where  a  bond  is  executed  without  being  required  or 
authorized  by  any  statute,  the  makers  cannot  defend  against  it  on 
that  ground ;  it  is  good  as  a  common-law  Ijond.  This  was  ruled 
in  an  action  on  a  bond,  given  by  a  plaintiff  on  commencing  a  suit 
by  attachment  in  a  Circuit  Court  of  the  United  States,  and  the 
bond  was  made  to  the  United  States.  No  law  of  the  United 
States  requiring  it,  and  not  being  executed  in  connection  with 
any  business  of,  or  any  duty  of  the  obligors  to,  the  government, 
it  was  contended  that  it  could  not  be  enforced ;  but  the  court 

1  Hunter  v.  Ladd,  2  Illinois  (1  Scam-  *  Ante,  §  121. 

mon),  551.  ^  Sumpter  v.  Wilson,  1  Indiana,  144. 

-  Brancli  of  State  Bank  v.  Morris,  13  ''  Benedict  v.  Bray,  2  California,  251. 

Iowa,  136.  '   Hibbs  v.  Blair,  14  Benn.  State,  413; 

3  Tyson  v.  Lansing,  10  Louisiana,  444.  State  v.  Berry,  12  Missouri,  376. 
[124] 


CHAP.  YI.]  ATTACHMENT  BONDS.  §    154 

determined  otherwise.^  So,  if  the  law  require  the  bond  to  be 
approved  by  the  court,  but  it  be  approved  by  a  judge  in  vacation, 
it  is  not  therefore  void,  but  is  good  as  a  common-kw  bond.- 

§  152.  The  bond  is  not  confined,  in  its  obligation,  to  the  pro- 
ceedings in  the  court  in  which  the  attachment  suit  was  instituted, 
but  extends  on  to  the  final  determination  of  the  cause.  Where 
the  condition  was  "  to  pay  the  defendant  all  damages  and  costs 
which  he  may  sustain  by  reason  of  the  issuing  of  the  attachment 
if  the  plaintiff  fail  to  recover  judgment  thereon,"  the  plaintiff 
recovered  judgment  in  the  court  in  which  the  suit  was  brought, 
and  the  defendant  appealed  therefrom,  and  in  the  appellate  court 
the  judgment  was  reversed.  When  sued  on  the  bond,  the  obligor 
urged  that  the  condition  was  not  broken,  inasmuch  as  he  had 
recovered  judgment  in  the  attachment  suit ;  but  this  view  was 
not  sustained ;  the  court  considering  that  the  bond  was  not  re- 
stricted to  the  court  in  which  the  attachment  was  obtained,  but 
extended  to  the  final  result  of  the  case.^ 

§  153.  Actions  on  Attachment  Bonds.  Approaching  now  the 
subject  of  actions  on  these  bonds,  the  inquiry  arises,  What  is  the 
legislative  intention  in  requiring  such  bonds  to  be  given  ?  Is  it 
that  they  shall  supersede  the  common-law  action  for  malicious 
prosecution  ?  If  so,  the  defendant  in  the  attachment  can  main- 
tain no  action,  save  on  the  bond.  If  not,  then  the  bond  must  be 
intended,  either  as  a  mere  security  for  what  maj^  be  recovered  in 
an  action  for  malicious  prosecution,  or  as  authorizing  a  recovery 
of  damages  for  a  wrongful  attachment,  on  other  principles  than 
those  established  by  the  common  law  in  actions  for  malicious 
prosecution. 

§  154.  On  the  first  point,  it  has  been  uniformly  decided,  that 
the  remedy  of  the  attachment  debtor  for  a  wrongful  attachment, 
by  an  action  for  malicious  prosecution,  is  not  affected  by  the  exe- 
cution of  the  bond,  but  that  that  remedy  still  subsists."^ 

1  Barnes  i'.  Webster,  16  Missouri,  258 ;  v.    Story,  4   Humphreys,   169  ;  Pettit  v. 

Sheppard  I'.  Collins,  12  Iowa,  570.  Mercer,   8    B.    Monroe,    51;    Senccal   v. 

-  Williams  v.   Coleman,  49   Missouri,  Smith,  9  Robinson  (La.),  418;  Smitli   v. 

325.  Eakin,  2  Sneed,  456;  Bruce  i'.  Coleman, 

3  Ball  V.   Gardiner,  21  Wendell,  270 ;  1    Handy,    515 ;  Sledge   v.   McLaren,   29 

Bennett  v.  Brown,  20  New  York,  99.  Georgia,  64  ;    Churchill  v.  Abraham,  22 

*  Sanders  v.  Hughes,  2  Brevard,  495 ;  Illinois,  455. 
Donnell  v.  Jones,  13  Alabama,  490  ;  Smith 

[125] 


§  156  ATTACHMENT   BONDS.  [CHAP.  VI. 

§  155.  On  the  second  jioint,  it  seems  incontrovertible  that  the 
bond  is  not  intended  as  a  mere  securit}'  lor  the  payment  of  what 
ma}*  be  recovered  in  an  action  for  malicious  prosecution  ;  for  if 
so  intended,  it  should  be  conditioned  for  the  payment  of  the  dam- 
ages which  the  defendant  may  sustain  by  reason  of  the  attachment 
having  been  sued  out  maliciously  and  without  probable  cause ; 
but  such  are  never  the  terms  used.  Again,  the  penalty  is  always 
in  a  prescribed  sum,  which  in  many  cases  would  be  much  less 
than  the  amount  that  might  be  recovered  in  an  action  for  mali- 
cious prosecution.  And  again,  if  so  intended,  no  action  could 
properly  be  maintained  upon  it,  until  the  damages  had  been 
liquidated  and  determined  in  an  action  for  malicious  prosecution ; 
whereas,  it  is  a  constant  practice  to  sue  in  the  first  instance  ou 
the  bond,  and  has  been  repeatedly  decided  to  be  admissible.^ 
Hence  we  apprehend  that  the  bond  is  not  intended  merel}'  as  a 
securit}^  for  damages  recoverable  in  an  action  for  malicious  prose- 
cution ;  and  that  in  requiring  such  bonds,  it  is  intended  to 
authorize  the  recovery  of  other  than  such  damages;  and  that  a 
recovery  on  them  is  not  restricted  to  that  authorized  by  the  prin- 
ciples of  the  common  law  governing  actions  for  malicious  prose- 
cution. 

§  156.  This  subject  was  discussed  by  the  Court  of  Appeals  of 
Kentucky,  in  a  case  where  the  condition  of  the  bond  was  "  for  the 
payment  of  all  costs  and  damages  sustained  by  the  defendant  by 
reason  of  the  wrongful  issuing  of  tlie  order  for  the  attachment  ;  " 
and  the  court  said  :  "  The  extent  to  which  the  plaintiff  has  a  right 
to  recover  in  a  suit  of  this  kind,  or  in  other  words,  his  right  to 
damages  commensurate  to  the  injury  sustained  by  him  in  conse- 
quence of  the  extraordinary  proceeding  by  attachment,  forms  the 
chief  subject  of  inquiry  in  this  case.  Has  he  a  right  to  show  that 
his  credit  has  been  seriously  affected,  his  sensibilities  wounded, 
and  his  business  operations  materially  deranged,  in  consequence 
of  the  attachment  having  been  sued  out  ;  and  to  rely  upon  these 
matter^  to  enhance  the  amount  of  damages  ?  Or  is  he  to  be  con- 
fined to  the  costs  and  expenses  incurred  by  him,  and  such  damages 
as  he  may  have  sustained  by  a  deprivation  of  the  use  of  his  prop- 
erty, or  any  injury  thereto,  or  loss  or  destruction  thereof,  by  the 
act  of  the  plaintiff  in  suing  out  the  attachment  ? 

1  Post,  §  166. 
[126] 


CHAP,  yi.]  ATTACHMENT  BONDS.  §  157 

"  The  defendant  has  a  right  to  bring  an  action  on  the  case 
against  the  i:)laintiif  for  a  vexatious  and  malicious  proceeding  of 
this  kind.  In  such  a  suit,  damages  may  be  claimed  for  every 
injury  to  credit,  business,  or  feelings.  But  to  sustain  such  a  suit, 
and  enable  the  plaintiff  to  succeed,  malice  upon  the  part  of  the 
defendant,  and  the  want  of  probable  cause,  are  both  requisite. 
In  a  suit  on  the  bond,  the  plaintiff  is  not  bound  to  show  malice, 
nor  can  the  defendant  rely,  by  way  of  defence,  upon  probable 
cause.  It  would  seem,  therefore,  to  follow,  that  such  injuries  as 
he  is  entitled  to  redress  for,  only  where  malice  exists,  and  probable 
cause  is  wanting,  could  not,  with  any  propriety,  be  estimated  or 
taken  into  consideration  in  a  suit  on  the  bond.  To  allow  it  to  be 
done  would  be  inconsistent  with  all  the  analogies  of  the  law, 
which  should  not  be  violated,  unless  it  be  imperiousl}^  required 
by  the  terms  of  the  bond,  or  the  presumed  intention  of  the 
legislature. 

"If  an  order  has  been  obtained  without  just  cause,  and  an 
attachment  has  been  issued,  and  acted  on  in  pursuance  of  the 
order,  the  terms  of  the  bond  secure  to  the  defendant  in  the  attach- 
ment all  costs  and  damages  that  he  has  sustained  in  consequence 
thereof.  The  condition  of  the  bond  is  satisfied,  and  its  terms 
substantially  complied  with,  by  securing  to  him  damages  adequate 
to  the  injury  to  the  property  attached,  and  the  loss  arising  from 
the  deprivation  of  its  use,  together  with  the  actual  costs  and 
expenses  incurred. 

"  It  cannot  be  rationally  presumed  that  the  legislature  designed 
to  impose  on  the  security  in  the  bond  a  more  extensive  liability. 
The  statute  is  remedial  in  its  character,  and  should  be  expounded 
so  as  to  advance  the  object  contemplated.  To  impose  an  almost 
unlimited  liability  on  the  security  in  the  bond,  sufficient  to 
embrace  every  possible  injury  that  the  defendants  might  sustain, 
would  be  in  effect  to  defeat  in  a  great  measure  the  object  of  the 
statute,  by  rendering  it  difficult,  if  not  impracticable,  for  the 
plaintiff  to  execute  the  necessary  bond."  ^ 

§  157.  The  introduction  of  attachment  bonds  in  Alabama,  led 

1  Pettit  V.  Mercer,  8  B.  Monroe,  51 ;  out  tlie  attaclinient,  it  is  iield  to  be  only 
Bruce  v.  Coleman,  1  Handy,  515.  In  security  for  tlie  payment  of  such  dam- 
Georgia,  whore  the  bond  is  for  the  pay-  ages  as  may  be  recovered  in  an  action 
nient  of  "all  damages  wliich  may  be  for  malicious  attachment.  Sledge  c.  Mc- 
recovered  against  the  plaintiff  "  tor  suing     Laren,  29  Georgia,  04. 

[1-27] 


§  157  ATTACHMENT  BONDS.  [CHAP.  VI. 

to  a  change  in  the  common-law  principles  which  would  otherwise 
liave  regulated  the  action  for  a  wrongful  attachment.  The  first 
reported  decision  there  on  this  subject  was  in  an  action  on  the 
case;  in  which  the  declaration  charged  that  the  defendant,  with- 
out any  just  or  probable  cause,  procured  an  attachment  to  be 
issued  and  levied  on  the  plaintiff's  property.  This,  as  a  declara- 
tion for  malicious  prosecution,  was  at  the  common  law  manifestly 
insufficient.  Plea,  not  guilty,  and  issue.  On  the  trial,  the  Cir- 
cuit Court  charged  the  jury  that  in  this  action  it  was  essential  to 
prove  malice.  This  view  was  overruled  by  the  Supreme  Court ; 
its  decision  manifestly  resting  on  the  existence  of  the  law  requir- 
ing a  bond  to  be  given,  though  the  action  was  not  on  the  bond. 
That  law  was  considered  as  changing  the  common-law  rule  in 
such  cases.  "  In  actions  for  a  malicious  prosecution,"  said  the 
court,  "  the  malice  of  defendant  must  be  proved,  or  implied  from 
the  circumstances,  to  entitle  the  plaintiff  to  recover.  Is  the  ac- 
tion for  wrongfully  suing  out  an  attachment  to  be  regulated  by 
the  same  principles  ?  The  original  attachment  is  a  j)rocess  cre- 
ated by  statute,  authorized  only  in  particular  cases,  its  abuse 
carefully  guarded  against,  and  the  remed}^  pursued  in  this  way 
always  liable  to  strict  construction.  By  our  statute  regulating  it, 
the  plaintiff  in  an  action  so  commenced  is  required  to  give  bond 
and  security  conditioned  to  satisfy  the  defendant  all  costs  and 
damages  '  awarded  for  wrongfully  suing  out'  (Act  of  1807),  or 
all  such  damages  as  he  may  sustain  by  the  wrongful  or  vexatious 
suing  out  of  such  attachment  (Act  of  1814).  In  providing  this 
extraordinary  remedy  for  the  plaintiff,  the  legislature  intended 
also  to  protect  the  rights  of  defendants.  It  was  obvious  that  the 
taking  and  detention  of  his  property  might  be  ruinous  to  the 
owner,  although  there  was  no  sort  of  malice  or  corrupt  motive  in 
the  party  at  whose  suit  it  might  be  attached.  Why  should  the 
condition  prescribed  for  the  bond  be  '  to  pay  all  damages  sus- 
tained by  the  wrongful  or  vexatious  suing  out,'  if  it  had  been  the 
intention  of  the  legislature  that  no  damages  should  be  recovered 
unless  for  the  malicious  suing  out  ?  If  such  had  been  their  in- 
tention, would  not  the  term  malicious  readily  have  occurred,  and 
been  used  instead  of  those  employed  ?  A  verbal  criticism  can 
hardly  be  necessary  to  prove  that  the  party  whose  property  is 
attached  may  find  the  proceeding  wrongful  and  vexatious,  that 
the  suing  it  out  may  be  ruinous  to  his 'credit  and  circumstances, 
[128] 


CHAP,  yi.]  ATTACHMENT   BONDS.  §  158 

though  obtained  without  the  least  malice  towards  him.  If  the 
plaintiff,  under  color  of  the  process,  do,  or  procure  to  be  done, 
what  the  law  has  not  authorized,  and  the  defendant  is  thereby 
injured,  it  seems  clear  that  he  is,  in  such  case,  as  much  as  in  any 
other,  entitled  to  redress  from  the  party  whose  illegal  or  '  wrong- 
ful '  act  has  occasioned  the  injury,  although  it  may  have  been 
done  without  malice."^ 

The  next  was  also  an  action  on  the  case  for  suing  out  an 
attachment  without  any  reasonable  or  probable  cause,  and  for  the 
purpose  of  vexing  and  harassing  the  plaintiff.  The  Supreme 
Court  again  held,  that  the  expression  of  the  legislative  will,  in 
designating  the  terms  of  the  bond,  indicated  that  the  mere 
wrongful  recourse  to  this  process  was  a  sufficient  cause  of  action, 
and  that  malice  was  important  only  in  connection  with  the  ques- 
tion of  damages.^ 

The  same  court  held,  that  actions  on  attachment  bonds  are 
governed  in  all  respects  by  the  rule  they  had  established  as  appli- 
cable to  actions  on  the  case,  except  the  recovery,  which  could 
not  exceed  the  penalty  of  the  bond.^  This  rule  was  expressed 
in  these  words:  "Whenever  an  attachment  is  wrongfully  sued 
out,  and  damage  is  thereby  caused  to  the  defendant  in  the  suit, 
he  is  entitled,  by  force  of  the  statutory  provision,  to  recover  for 
the  actual  injury  sustained.  And  if,  in  addition  to  its  being 
wrongfully  sued  out,  it  is  also  vexatiously,  or  in  other  terms, 
maliciously  sued,  then  the  defendant,  upon  the  principle  which 
governs  the  correlative  action  for  a  malicious  prosecution,  may 
recover  damages  as  a  compensation  for  the  vexatious  or  malicious 
act ;  or,  in  the  terms  of  the  statute,  such  damages  as  he  may  be 
entitled  to  on  account  of  the  vexatious  suit."^  But  the  malice 
which  will  make  the  suit  vexatious  as  to  the  defendant  must  be 
toward  him;  the  fact  that  the  attaching  creditor  was  actuated 
by  malice  against  some  third  person,  not  a  party  to  the  process, 
affords  no  ground  for  the  recovery  of  vindictive  damages.^ 

§  158.  In  Louisiana,  the  same  views  as  those  entertained  in 

1  Wilson  r.  Outlaw,  Minor,  3G7;  Kirk-  McCullough   v.    Walton,    11    Ibid.   4M  ; 
sey  v.  Jones,  7  Alabama,  022.  Donnell  v.  Jones,   13  Ibid.  490;  Sliar[)e 

2  Kirksicy  v.  Jones,   7  Alabama,  622  ;  v.  Hunter,  16  Ibid.  765;  Floyd  v.  llamil- 
Seay  i\  Greenwood,  21  Ibid.  41)1.  ton,  83  Ibid.  285. 

»  Hill   V.    Kusiiing,    4    Alalnima,   212;  *  Wood   v.   Barker,  37  Alabama,  GO; 

McCullough  r.  Walton,  11  Ibid.  4U2.  1  Shepherd's  Sel.  Cases,  311. 


*  Kirkeey  v.  Jones,  7  Alabama,  622 ; 


[129] 


§  161  ATTACHMENT  BONDS.  [CHAP.  VI. 

Alabama  liave  been  expressed,  as  well  in  actions  on  attachment 
bonds,  as  in  those  whii-h,  as  reported,  do  not  appear  to  be  of  that 
character.  There,  the  bond  is,  "  for  the  payment  of  such  dam- 
ages as  the  defendant  may  recover,  in  case  it  should  be  decided 
that  the  attachment  was  wrongfully  issued."  While  the  com- 
mon-law principles  governing  actions  for  malicious  prosecution 
are  there  fully  recognized  and  affirmed,^  it  is  held,  that  where  no 
malice  exists,  the  actual  damage  sustained  may  be  allowed  :  if 
malice  exists,  vindictive  damages  may  be  recovered.^  And  so  in 
Kaiisas,^  and  Texas.'* 

§  159.  In  Missouri,  where  the  condition  of  the  bond  was  "  for 
the  prosecution  of  the  suit  without  delay  and  with  effect,  and 
the  payment  of  all  damages  which  should  accrue  to  the  defend- 
ant or  any  garnishee,  in  consequence  of  the  attachment,"  the 
principles  of  the  common  law  in  regard  to  actions  for  malicious 
prosecution  have  not  been  applied  to  actions  on  these  bonds,  but 
on  the  contrary  the  recovery  of  actual  damages  was  allowed  in  a 
case  presenting  no  ingredient  of  malice.^  And  so  in  New  York,^ 
and  in  Ohio.' 

§  160.  In  Tennessee,  however,  where  the  bond  is  conditioned 
"  for  satisfying  all  costs  which  shall  be  awarded  to  the  defendant, 
in  case  the  plaintiff  shall  be  cast  in  the  suit,  and  also  all  damages 
Avhich  shall  be  recovered  against  the  plaintiff  in  any  suit  which 
may  be  brought  against  him,  for  wrongfully  suing  out  the  attach- 
ment," it  was  decided,  in  an  action  on  the  case  for  a  wrongful 
attachment,  that  the  principles  of  the  common  law  remained  un- 
changed ;  ^  and  that  in  an  action  on  the  bond,  a  recovery  might 
be  had,  not  only  for  such  damages  as  are  properly  lecoverable  in 
the  common-law  action,  but  likewise  for  other  damages,  upon 
grounds  contemplated  by  the  statute,  and  not  embraced  by  the 
principles  governing  the  action  on  the  case.^ 

§  161.  From  this  summary  of  the  views  of  different  courts  on 

1  Senecal  i.  Smitli,  9  Robinson  (La.),  ^  Reed  v.  Samuels,  22  Texas,  114; 
418  ;  Grant  v.  Deuel,  3  Ibid.  17.  Hughes  i:  Brooks,  36  Ibid.  37!). 

2  Cox  V.  Robinson,  2  Robinson  (La.),  ^  Hayden  v.  Sample,  10  Missouri,  21.5. 
313  ;  Offutt  V.  Edwards,  9  Ibid.  90  ;  Horn  ''  Dunning  v.  Humphrey,  24  Wendell, 
V.   Bayard,    11    Ibid.  259;    Littlejohn   v.  31;  Winsor  c.  Orcutt,  11  Paige,  578. 
Wilcox,  2  Louisiana  Annual,  620;  Moore  "^  Bruce  v.  Coleman,  1  Handy,  515. 

V.  Withenburg,  13  Ibid.  22.  ^  Smith  v.  Story,  4  Humphreys,  169. 

3  McLaughlin  v.  Davis,  14  Kansas,  168.  »  Smith  v,  Eakin,  2  Sneed,  456. 

[130] 


CHAP.  YI.]  ATTACHMENT  BONDS.  §  162  a 

this  subject,  it  is  apparent  that  the  execution  of  a  cautionary 
bond  by  an  attachment  plaintiff,  modifies  the  common-law  rule, 
and  gives  the  defendant  recourse  against  the  plaintiff  on  the 
bond,  for  a  wrongful  attachment,  where  there  existed  no  malice 
in  suing  it  out.  The  practical  working  of  this  rule  will  be  pres- 
ently exhibited,  in  connection  with  the  question  of  damages. 

§  162.  The  only  party  who  can  maintain  an  action  on  an  at- 
tachment bond  is  the  defendant.  The  bond  is  not  required  for 
the  protection  of  the  officer  executing  the  attachment,  nor  for 
the  indemnification  of  a  third  party  whose  property  may  be 
wrongfully  attached,  but  simply  for  the  benefit  of  the  party 
against  whom  the  writ  issues.  This  was  so  held  in  Virginia, 
where  the  condition  of  the  bond  was  "  to  pay  all  costs  and  dam- 
ages which  may  be  awarded  against  the  plaintiff,  or  sustained  by 
any  person^  by  reason  of  his  suing  out  the  attachment."^  And 
so  in  Louisiana.^ 

§  162  a.  Where  the  defendant  has  been  served,  no  action  will  lie 
on  the  bond  until  the  attachment  shall  have  been  discharged  ; 
and  such  final  disposition  of  it  must  be  alleged.^  Therefore, 
where  an  attachment  was  abated  by  the  judgment  of  the  court 
on  a  trial  of  a  plea  in  abatement  to  the  affidavit,  but  motions  in 
arrest  of  judgment  and  for  a  new  trial  were  made  and  pending 
when  the  action  on  the  bond  was  instituted,  the  action  was  held 
to  have  been  prematurely  brought.*  But  where  the  attachment 
proceedings  are  ex  parte,  the  right  of  action  on  the  bond  does 
not  depend  on  the  attachment  having  been  discharged ;  but  it 
may  be  sued  on  after  judgment  obtained  on  publication,  and  that 
judgment  will  not  preclude  the  defendant  therein  from  showing 
that  the  attachment  was  wrongfully  obtained,  because  the  claim 
on  which  it  was  issued  was  false  and  unjust.^ 

Where,  as  shown  in  the  next  section  to  be  the  case  in  Ohio, 
when  there  are  several  defendants  in  the  attachment,  a  suit  may 
be  maintained  on  the  bond  by  those  against  whom  the  attach- 
ment was  wrongfully  obtained,  without  joining  those  against  whom 

1  Davis  V.  Commonwealth,  13  Grattan,  »  XoUe  v.  Tliompson,  3  Metcalfe  (Ky.), 
139.  121. 

2  Raspillier  t-.  Brownson,  7  Louisiana,  •*  State  v.  Williams,  48  Missouri,  210. 
231 ;    Edwards   v.   Turner,   G    Kobinson          <»  Bliss  v.  Heasty,  61  Illinois,  338. 
(La.),  382. 

[131] 


§  166  ATTACHMENT   BONDS.  [CHAP.  VI. 

it  was  rightfully  obtained,  it  is  not  necessary,  in  a  suit  by  the 
former  on  the  bond,  to  aver  or  prove  that  the  attachment  had 
been  discharged  as  to  the  latter.^ 

§  10)3.  Where  there  are  several  defendants,  and  a  bond  in  favor 
of  them  all,  it  was  held  in  Alabama,  that  the  action  on  the  bond 
must  be  in  the  name  of  all,  though  the  attachment  was  levied  on 
the  separate  property  of  each,  in  Avhich  they  had  not  a  joint  in- 
terest. How  the  damages  are  to  be  divided  between  the  obligees 
in  the  bond,  is  a  matter  with  which  the  obligors  have  no  concern, 
as  they  will  be  protected  by  a  recovery  in  the  names  of  all  the 
obligees,  from  another  action  by  all,  or  either.'^  In  Ohio,  how- 
ever, it  was  held,  that  a  right  of  action  accrues  to  those  defend- 
ants who  were  injured  by  the  wrongful  attachment,  and  that  it  is 
not  necessary  that  the  defendants  against  whom  the  attachment 
was  rightfully  obtained  should  be  joined  either  as  plaintiffs  or 
defendants.^ 

§  161.  It  is  not  necessary,  in  order  to  enable  the  party  injured 
to  maintain  a  suit  on  the  bond,  that  he  should  obtain  an  order 
of  the  court  in  which  the  bond  was  filed,  to  deliver  it  to  him  for 
suit.* 

§  165.  The  sureties  in  the  bond  can  be  subjected  to  liability, 
only  in  reference  to  the  particular  writ  for  obtaining  which  it  was 
given.  This  was  decided  in  Louisiana,  upon  the  following  case  : 
A.  sued  out  an  attachment,  and  gave  bond.  The  attachment 
was  not  executed,  and  some  time  afterward  A.  voluntarily  aban- 
doned it,  and  took  out  another,  without  giving  any  new  bond. 
It  was  held,  that  the  lialnlity  of  the  surety  on  tlie  bond  extended 
only  to  the  time  of  the  abandonment  of  the  first  writ,  and  could 
not  be  revived  without  his  consent.^ 

§  166.  The  question  arises,  whether,  in  order  to  maintain  an 
action  on  the  bond,  the  damages  must  first  be  recovered  in  a  dis- 
tinct action.     This  is  not  believed  to  be  requisite,  and  it  was  so 

1  Alexander  v.  Jacoby,  23  Oliio  State,  *  Bruce  v.  Coleman,  1  Handy,  515. 

358.  5  Erwin  v.    Com.    &   U.  R.  Bank,  12 

^  Boyd  V.  Martin,  10  Alabama,  700.  Robinson  (La.),  227. 

3  Alexander  v.  Jacoby,  23  Ohio  State, 
358. 

[13-2] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  16T 

decided  in  Virginia,  where  the  bond  is  to  pay  "  all  such  costs  and 
damages  as  may  accrue  for  wrongfully  suing  out  the  attach- 
ment ;  "  ^  in  Alabama,  where  it  is  to  pay  "  all  such  costs  and 
damages  as  he  might  sustain  by  the  wrongful  or  vexatious  suing 
out  of  the  attachment ;  "  ^  in  Tennessee,  where  it  is  to  pay  "  all 
damages  which  shall  be  recovered  against  the  plaintiff  in  any 
suit  which  may  be  brought  against  him,  for  wrongfully  suing  out 
the  attachment;  "3  in  Ohio,  where  it  is  "to  pay  all  damages 
which  the  defendant  may  sustain  by  reason  of  the  attachment,  if 
the  order  therefor  be  wrongfully  obtained;"'*  and  in  Illinois, 
where  it  is  "  to  pay  and  satisfy  the  defendant  all  such  costs  and 
damages  as  shall  be  awarded  against  the  plaintiff  in  any  suit 
which  may  hereafter  be  brought  for  wrongfully  suing  out  the 
attachment."  ^  The  Supreme  Court  of  Georgia,  however,  took  a 
different  view,  where  the  bond  was  to  pay  "  all  damages  which 
may  be  recovered  against  the  said  plaintiff  for  suing  out  the  at- 
tachment ;  "  terms  almost  the  same  as  those  in  the  Tennessee 
bond. 6  And  in  Mississippi,  where  the  bond  was  "  to  pay  and 
satisfy  the  defendant  all  such  costs  and  damages  as  shall  be 
awarded  against  him  in  any  suit  which  may  be  hereafter  brought 
for  wrongfully  suing  out  the  attachment,"  it  was  held,  that  suit 
must  first  be  brought  against  the  principal  in  the  bond,  and  that 
an  action  thereon  against  the  sureties  can  only  be  maintained  in 
the  event  of  his  failure  to  pay  the  costs  and  damages  recovered 
ao-ainst  him  in  such  suit.^  And  so  in  Colorado,  where  the  terms 
of  the  bond  are  the  same  as  in  Mississippi.^ 

§  166  a.  Where  the  suit  may  be  maintained  on  the  bond,  with- 
out previous  recovery  of  damages  in  a  distinct  action,  the  sure- 
ties may  be  sued  jointly  with  the  principal.^ 

§  167.  Debt  is  undoubtedly  the  proper  form  of  action  on  at- 
tachment bonds  ;  but  it  has  been  held  that  covenant  will  lie-i*^  In 
assigning  breaches,  it  is  not  sufficient  merely  to  negative  the 

'  Dickinson  v.  McGraw,  4  Randolph,  ^  Sledge  v.  Lee,  19  Georgia,  411. 

158.  T  Holcomb  f.  Fox  worth,  34  Mississippi, 

2  Herndon  v.  Forney,  4  Alabama,  243.  265. 

8  Smitii  V.  Eakin,  2"Sneed,  4.50.  8  Sterling  City  Mining  Co.  v.  Cock,  2 

*  Bruce  /•  Coleman,  1  Handy,  515.  Colorado,  24. 

s  Churchill    i-.    Abraham,  22   Illinois,  ^  Jennings  v.  .Joiner,  1  Coldwell,  645. 

455  10  Hill  '••  Uushing,  4  Alabama.  212. 

[133] 


§  170  ATTACHMENT  BONDS.  [CHAP.  VI. 

terms  of  tlie  condition.  The  declaration  mast  show  that  the 
attachment  Avas  wrongfully  sued  out,  and  what  damages  the 
plaintiff  has  sustained.  Therefore,  where  the  condition  was, 
that  the  plaintiff  should  prosecute  his  attachment  to  effect,  and 
pay  and  satisfy  the  defendant  all  such  costs  and  damages  as  he 
might  sustain  by  the  Avrongful  or  vexatious  suing  out  of  such 
attachment ;  and  the  breach  assigned  was,  that  he  did  not  prose- 
cute his  attachment  to  effect,  nor  pay  the  costs,  damages,  «&c., 
which  the  defendant  sustained  by  the  wrongful  and  vexatious 
suing  out  of  the  attachment,  by  means  whereof  the  said  bond 
became  forfeited,  and  the  attachment  plaintiff  liable  to  pay  the 
penalty  ;  the  declaration  was  held  bad  on  demurrer.^ 

§  168.  In  assigning  breaches,  if  the  damages  alleged  to  have 
been  sustained  exceed  the  amount  of  the  penalty,  it  is  proper  to 
assign  the  non-payment  of  the  penalty.  Where  the  damages 
claimed  do  not  equal  the  penalty,  the  averment  should  be  that 
they  have  not  been  paid.^  A  declaration  which  fails  to  aver  the 
non-payment  of  the  damages  sustained,  is  bad  on  demurrer.^ 

§  169.  A  recital  in  the  condition  of  the  bond,  that  the  plaintiff 
had  issued  a  writ  of  attachment  against  the  defendant,  estops  the 
obligors  from  denying  by  plea  that  the  attachment  was  sued  out, 
and  such  a  plea  is  bad  on  general  demurrer.* 

§  170.  Under  what  circumstances  may  the  attachment  defend- 
ant maintain  an  action  on  the  bond?  Does  the  mere  failure  of 
the  plaintiff  to  prosecute  his  suit  work  a  forfeiture  of  the  condi- 
tion ?  The  Supreme  Court  of  Louisiana  has  gone  very  far  in 
giving  recourse  on  the  bond  in  such  case.  There,  it  will  be  re- 
membered, the  obligation  is  "  for  the  paj^ment  of  such  damages 
as  the  defendant  may  recover,  in  case  it  should  be  decided  that 
the  attachment  was  wrongfully  obtained ;  "  and  it  is  held,  that  if 
a  plaintiff  voluntarily  abandons  his  attachment,  he  renders  him- 
self  and  his  surety  responsible  in  damages.     The  same  court, 

1  Flanagan  v.  Gilchrist,  8  Alabama,  Uhrig  v.  Sinex,  32  Ibid.  493;  Ryder  v. 
620.  See  Winsor  v.  Orcutt,  11  Paige,  Thomas,  32  Iowa,  56 ;  Horner  i'.  Harri- 
678;  Love  v.  Kid  well,  4  Blackford,  553.  son,  37  Ibid.  378;  Pinney   v.    Hershfield> 

2  Hill  V.  Rushing,  4  Alabama,  212.  1    Montana,  367. 

3  Michael  v.  Thomas,  27  Indiana,  501 ;  *  Love  v.  Kidwell,  4  Blackford,  553. 

[134] 


CHAP.  VI.]  ATTACHMENT  BONDS.  §  170 

with  less  apparent  reason,  has  gone  further,  and  decided  that, 
though  it  appear  that  the  pUxintiff  had,  at  the  commencement  of 
his  suit  a  sufficient  and  very  probable  cause  of  action,  and  was 
prevented  from  getting  a  judgment  by  some  technical  objection,  or 
irregularity  in  the  proceedings,  which  could  not  be  foreseen,  the 
defendant  may  nevertheless  hold  him  liable  for  the  damages  he 
actually  sustained ;  and  that,  if  an  attachment  be  set  aside  by 
order  of  the  court,  it  is  primd  facie  evidence  that  it  was  wrong- 
fully obtained.^  A  decision  was  once  given,  that  would  seem  to 
exempt  the  surety  in  such  a  case  from  liability  ;  ^  but  this  doc- 
trine was  held  inapplicable  to  the  plaintiff.^  As,  in  that  State, 
the  defendant's  claim  on  the  bond  for  damages  undoubtedly  rests 
on  its  being  decided  that  the  attachment  was  "  wrongfully  ob- 
tained,'''' it  is  difficult  to  see  upon  what  principle  the  plaintiff  can 
be  charged,  when  it  is  admitted  tliat  the  attachment  was  right- 
fully obtained,  but  he  failed  to  obtain  a  judgment,  for  technical 
reasons,  having  no  connection  with  the  merits  of  the  action  or 
the  cause  for  attachment. 

The  Supreme  Court  of  Alabama  took  a  different  view  of  the 
subject,  and  one  more  consonant  with  sound  reason.  In  an  action 
on  an  attachment  bond,  the  condition  of  which  was,  "  that 
the  plaintiff  should  prosecute  his  attachment  to  effect,  and  pay 
the  defendant  all  such  costs  and  damages  as  he  may  sustain  by  the 
wrongful  or  vexatious  suing  out  the  attachment,"  it  appeared  that 
in  the  attachment  suit,  the  defendant,  by  a  plea  in  abatement, 
caused  the  attachment  to  be  quashed,  for  informality  in  the  affi- 
davit upon  which  it  issued,  and  then  sued  the  plaintiff  for  dam- 
ages. On  the  trial  of  this  suit  for  damages,  it  was  shown  that 
there  were  good  grounds  for  the  attachment,  though  not  suffi- 
ciently set  out  in  the  affidavit.  The  court  charged  the  jury,  that 
if  they  believed  the  attachment  was  sued  out,  and  was  abated  on 
plea,  the  plaintiff  was  entitled  to  recover  the  actual  damage  he 
had  sustained.  The  Supreme  Court  held  this  instruction  to  be 
wrong,  and  observed:  "  What  is  meant  by  the  term  'wrongful,' 
as  used  in  the  statute  to  which  this  bond  conforms  ?  Was  it,  as 
is  contended,  designed  to  apply  to  defects  in  the  form  of  the  pro- 

1  Cox)J.Robinson,2R()bin8on(La.),313.  ^  Cqx  y.  Robinson,  2  Robinson  (La.), 

2  Garretson  v.  Zacharie,  8  Martin,  n.  s.     S13. 
481. 

[135] 


§170 


ATTACHMENT   BONDS. 


[chap.  VI. 


ceeding,  on  account  of  which  the  attachment  should  be  quashed, 
as  well  as  to  the  ground  upon  which  it  was  to  be  issued?  Or  was 
the  object  of  the  framers  of  the  act  merely  to  provide  a  remedy 
against  persons  who  should  resort  to  this  extraordinary  remedy  to 
the  prejudice  of  another,  without  cause  or  sufficient  ground  there- 
for? AVe  think  that  by  the  wrongful  suing  out  of  the  attach- 
ment is  meant,  not  the  omissions,  irregularities,  or  informalities 
which  tlie  officer  issuing  the  process  may  have  committed  in  its 
issuance,  but  that  the  party  resorted  to  it  without  sufficient 
ground."  ^ 

In  Kentucky,  where  the  bond  was  conditioned  "for  the  pay- 
ment of  all  costs  and  damages  sustained  by  the  defendant  by 
reason  of  the  wrongful  issuing  of  the  order  for  an  attachment,"  — 
terms,  in  substance,  equivalent  to  those  of  the  Louisiana  bond, — 
it  was  held,  that  a  mere  failure  to  prosecute  the  suit  does  not 
give  an  action  on  the  bond.  The  order  must  have  been  procured 
wrongfully  and  without  just  cause,  to  constitute  a  breach  of  the 
condition,  although  the  plaintiff  may  have  abandoned  the  prose- 
cution of  the  suit.2 

In  Tennessee,  the  condition  of  the  bond  is,  "for  satisfying  all 
costs  which  shall  be  awarded  to  the  defendant,  in  case  the  plain- 
tiff shall  be  cast  in  the  suit,  and  also  all  damages  which  shall  be 
recovered  against  the  plaintiff  in  any  suit  or  suits  which  may  be 
brought  against  him  for  wrongfully  suing  out  the  attachment ;  " 
and  it  has  been  there  decided,  that  mere  want  of  success  does  not 
jier  se  subject  the  plaintiff  to  an  action,^  and  that  the  burden  is  on 
the  defendant  to  show  that  he  has  sustained  damage ;  and  if  no 
evidence  to  that  point  be  given,  no  damages  can  be  recovered.* 

In  Missouri,  where  the  condition  of  the  bond  is  "that  the  plain- 


1  Sharpe  v.  Hunter,  16  Alabama,  765. 
Sefi  Eaton  v,  Bartscherer,  5  Nebraska, 
469. 

2  Pettit  V.  Mercer,  8  B.  Monroe,  51. 
In  that  State  tliis  case  occurred :  A. 
sued  B.  by  attachment,  and  when  tlie 
case  had  been  several  ye;'.rs  pending,  the 
office  of  the  clerk  of  the  court,  and 
the  record  in  the  case,  were  destroyed  by 
fire.  Afterwards,  the  court  ordered  the 
plaintiff  to  supply  the  burnt  record  or 
submit  to  a  nonsuit.  lie  could  not  sup- 
ply a  complete  record,  and  thereupon  his 

[136] 


petition  was  dismissed,  and  his  attach- 
ment "  discharged  without  prejudice." 
He  was  then  sued  on  the  bond  given  to 
obtain  the  attachment.  It  was  held,  that 
the  order  of  discharge  of  the  attachment 
withoiil  prejudice  was,  under  the  circum- 
stances, no  evidence  that  the  attachment 
was  wrongful  or  even  hurtful,  but  rather 
implied  the  contrary.  Cooper  v.  Hill,  3 
Bush,  219. 

3  Smith  V.  Story,  4  Humplire3's,  169. 

*  banning  v.  Reeves,  2  Tennessee 
Ch'y.  "^63, 


CHAP.  YI.]  ATTACHMENT   BONDS.  §  170  a 

tiff  shall  prosecute  his  action  without  delay  and  with  effect,  .  .  . 
and  pay  all  damages  and  costs  that  may  accrue  to  any  defendant 
or  garnishee,  by  reason  of  the  attachment,  or  any  process  or  pro- 
ceeding in  the  suit,  or  by  reason  of  any  judgment  or  process 
thereon  ;  "  a  judgment  on  the  merits  for  the  defendant,  in  the  at- 
tachment suit,  will  authorize  a  suit  on  the  bond,  though  he  did 
not  put  in  issue  the  truth  of  the  affidavit  on  which  the  attach- 
ment issued.^ 

In  Indiana,  views  have  been  expressed  on  this  subject,  such  as 
have  not  been  elsewhere.  There  the  bond,  or  "  undertaking  "  is 
that  the  plaintiff  "shall  duly  prosecute  his  proceeding  in  attach- 
ment, and  pay  all  damages  which  may  be  sustained  by  the  de- 
fendant, if  the  proceedings  of  the  plaintiff  shall  be  wrongful  and 
oppressive;"  and  the  law  declares  that  "a  defendant  shall  be  en- 
titled to  an  action  on  the  undertaking  ...  if  it  shall  appear  that 
the  proceedings  were  wrongful  and  oppressive."  In  an  action  of 
this  kind,  it  appeared  that  the  attachment  suit  was  determined  in 
favor  of  the  defendant,  but  without  his  putting  in  issue  the  truth 
of  the  affidavit,  and  without  any  finding  by  the  court  on  that 
point.  It  was  held,  that  the  right  of  action  existed,  notwith- 
standing there  had  been  no  such  issue  or  finding.  And  the  court 
went  farther,  though  the  point  was  not  involved  in  the  case,  and 
expressed  the  opinion  that  an  action  on  the  undertaking  might  be 
maintained,  if  the  attachment  proceedings  were  wrongful  and  op- 
pressive, though  there  had  been  judgment  for  the  plaintiff  \\\  the 
attachment  suit.^  This  would  seem  to  have  been  intended  to 
apply  only  to  a  case  where  there  had  been  no  contest  over  the 
affidavit;  for  at  the  same  term  the  court  said  that  where  both  the 
main  action  and  the  attachment  are  sustained,  —  which,  of  course, 
implies  a  contest  on  both, —  there  can  be  no  suit  on  the  under- 
taking.^ 

§  170  a.  When  sued  on  tlie  bond,  where  there  has  been  no  pre- 
vious trial  and  determination  of  the  rightfulness  of  the  plaintiff's 
act  in  suing  out  the  attachment,  the  question  arises  whether,  in 
justifying  tiiat  act,  he  is  confined  to  matters  known  to  him  when 
the  attacliment  was  obtained,  or  may  also  show  facts  which  were 

1  State    V.   Beldsnieier,   56    Missouri,  '^  Harper  v.  Keys,  43  Indiana,  220. 

226.  3  Wilson  v.  Root,  43  Indiana,  486. 

[137] 


§171  ATTACHMENT   BONDS.  [CHAP.  VI. 

not  then  known  to  liim,  but  which  go  to  prove  that  the  grounds 
alleged  by  him  for  obtaining  it  were  in  fact  true.  In  an  action 
for  jualieious  prosecution,  as  appears  elsewhere,'  probable  cause 
cannot  be  established  by  showing  facts  of  which  the  plaintiff  had 
no  knowledge  when  he  sued  out  the  writ ;  but  in  Iowa,  it  has 
been  held  otherwise,  in  suits  on  attachment  bonds,  whose  obliga- 
tion is  "to  pay  all  damages  which  the  defendant  may  sustain  by 
reason  of  the  wrongful  suing  out  of  the  attachment."  In.  that 
State,  to  obtain  an  attachment,  the  plaintiff  swears  that  he  verily 
believes  that  the  defendant  is  doing  or  has  done  that  which  will 
justify  the  attachment.  It  was  there  held,  at  first,  that  the  true 
issue  in  an  action  on  the  bond  is,  whether  the  plaintiff  had  suffi- 
cient cause  for  believing  as  he  alleged  ;  and  that  if  the  belief  ap- 
pears to  have  been  without  foundation  or  verit}^  the  attachment 
was  wrongful.^  Afterwards  the  court  said :  "  The  question, 
under  our  statute,  is  not  whether  the  facts  were  actually  true, 
upon  which  the  attaching  plaintiff  bases  his  affidavit  for  a  writ, 
but  had  he,  exercising  that  degree  of  caution  that  a  reasonable 
prudent  man  should,  good  cause  to  believe  that  which  he  had 
stated  as  true."^  There  would  be  more  foundation  for  this  view 
if  the  statute,  as  in  some  States,  required  the  plaintiff  to  aver  that 
he  had  good  reason  to  believe  and  did  believe  the  existence  of  the 
facts  alleged  in  the  affidavit  for  obtaining  the  attachment ;  but 
even  in  that  case,  as  elsewhere  appears,*  a  plea  traversing  the  affi- 
davit does  not  put  in  issue  the  plaintiff's  belief,  nor  the  goodness 
of  the  reasons  for  his  belief,  but  the  truth  of  the  facts  charged. 
It  is  not,  therefore,  surprising  that  the  Iowa  court  should  have 
subsequently  reconsidered  and  changed  its  conclusions.  The  rule 
there  now  is,  that  if  the  plaintiff  had  good  cause  to  believe  the 
grounds  for  attachment  true,  or  if  they  were  true  in  fact,  the 
suing  out  of  the  attachment  was  not  wrongful.^ 

§  171.  In  an  action  on  the  bond,  where,  in  the  attachment  suit, 
the  proceedings  were  entirely  ex  parte,  it  is  not  sufficient  merely 
to  assign,  as  a  breach  of  the  condition,  that  the  defendant  did  not 
owe  the  debt  for  which  the  attachment  was  sued  out;  he  must 
set  forth  the  proceedings  under  the  attachment,  and  sliow  that  a 
judgment  was  given  against  him,  and  his  property  used  to  satisfy 

1  Post,  §  732  a.  8  Burton  v.  Knapp,  14  Iowa,  196. 

^  Wincliester  v.  Cox,  4  G.  Greene,  121 ;  *  Post,  §  409. 

Mahnke  v.  Damon,  3  Iowa,  107.  ^  Vorse  v.  Phillips,  37  Iowa,  428. 
[138] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  173 

it;  that  he  did  not  owe  the  debt;  and  that  the  attachment  and 
judgment  were  illegal.^ 

§  172.  Where  the  cases  in  which  an  original  attachment  may 
issue  are  different  from  those  authorizing  an  auxiliary  or  ancillary 
attachment,  —  a  writ  taken  out  in  aid  of  a  pending  suit  instituted 
by  summons,  —  and  the  plaintiff  in  an  original  attachment  is  sued 
on  his  bond,  lie  cannot,  as  a  defence  thereto,  show  that,  when  he 
obtained  the  attachment,  facts  existed  which,  under  the  law, 
would  have  justified  an  ancillary  attachment.^ 

§  173.  Where  an  attaching  plaintiff  complies  with  all  the  re- 
quirements of  the  law  in  procuring  an  attachment,  the  presump- 
tion is,  that  it  is  rightfully  sued  out ;  and  if  the  defendant,  in  an 
action  on  the  bond,  claims  that  it  was  wrongfully  done,  the  bur- 
den is  upon  him  to  establish  that  fact.  Not  that  he  must  neces- 
sarily do  it  by  positive  testimony ;  but  it  may  be  shown  by  proof 
of  such  facts  and  circumstances  as  tend  to  establish  the  wrongful 
character  of  the  act.^  The  failure  of  the  attaching  plaintiff  to 
sustain  his  action  is  undoubtedly  prima  facie  evidence  in  support 
of  the  defendant's  action  on  the  bond  ;  but  it  is  not  conclusive 
proof  that  the  attachment  was  either  wrongfully  obtained,  in  the 
sense  of  being  merely  obtained  without  sufficient  cause,  though 
without  malice,*  or  that  the  attachment  plaintiff  acted  wilfully 
wrong,  that  is  maliciously,  in  suing  it  out.^  The  latter  position 
will  undoubtedly  hold  good  in  all  cases,  without  regard  to  the 
particular  manner  in  which  the  attachment  suit  was  terminated 
in  favor  of  the  defendant ;  but  it  is  deemed  quite  as  certain,  that, 
in  an  action  in  the  former  class  of  cases,  where  malice  is  not  in- 
volved, and  only  the  wrong  of  the  attachment  is  to  be  established, 
if  the  suit  was  terminated  hy  a  finding  in  favor  of  the  defendant,  on 
an  issue  as  to  the  truth  of  the  facts  alleged  as  the  ground  for  the 
attachment,  then  the  judgment  would  conclusively  establish  that 
the  attachment  was  wrongfully  obtained.^  So,  if  there  was,  when 
the  attachment  was  obtained,  no  debt  due  from  the  defendant 
to  the  plaintiff.'^ 

1  Hoshaw  V.  Iloshaw,  8  Blackford,  <  Sackett  v.  McCord,  23  Alabama,  851. 
268.  5  llaver  v.  Webster,  3  Iowa,  502. 

2  Reynolds  v.  Culbreath,  14  Alabama,  «  Mitchell  v.  Mattingly,  1  Metcalfe 
581.  (Ky.),  237. 

8  Veiths  V.  Hagge,  8  Iowa,  168 ;  Bur-  '  Lockhart   v.   Woods.    38   Alabama, 

rows  V.  LehndorfE,  Ibid.  96.  631;   Tucker  v.  Adams,  62  Ibid.  254. 

[139] 


§174  ATTACHMENT   BONDS.  [CHAP.  VI. 

But  SO  far  as  the  amount  of  the  claim  of  the  attachment  plain- 
tiff is  involved  in  the  question  of  the  defentlant's  recourse  upon 
the  bond,  the  judgment  in  the  attaelnnent  suit  is  conclusive  ;  and 
if  that  be  for  a  less  sum  than  the  law  allows  an  attachment  to 
issue  for,  it  is  complete  evidence  that  the  attachment  was  wrong- 
fully obtained  ;  though  it  does  not  settle  the  question  of  wilful 
wrong  on  the  part  of  the  attachment  plaintiff.^ 

§  173  a.  In  an  action  on  the  bond  it  is  no  defence  that  the 
return  on  the  attachment  does  not  show  a  levy  made  according 
to  the  statute,  if  a  levy  de  facto  was  made.  Nor  is  it  a  justifica- 
tion, or  mitigation  of  damages,  that  the  claim  sued  on  was  a  just 
one,  where  the  statutory  ground  for  suing  out  the  attachment 
did  not  exist ;  for  the  claim  may  be  just,  and  yet  the  attachment 
wrongful,  and  even  wilfully  wrong.^  And  where,  to  obtain  an 
attachment  of  certain  property,  the  attaching  creditor  averred  it 
to  be  the  defendant's,  he  cannot,  when  sued  on  the  bond,  set  up 
as  a  defence  that  it  was  not.^ 

§  174.  In  an  action  on  the  bond,  the  attachment  plaintiff  can- 
not excuse  himself,  because,  in  obtaining  the  attachment,  he 
acted  in  good  faith  ;  *  nor  is  the  matter  of  probable  cause  involved, 
except  in  relation  to  the  question  of  damages;  and  where  the  affi- 
davit avers  the  existence  of  the  ground  for  attachment,  and  not 
the  plaintiff's  belief  of  its  existence,  no  belief  of  the  attachment 
plaintiff,  however  firm  and  sincere,  that  he  had  good  ground  for 
obtaining  the  attachment,  can  affect  the  defendant's  right  to  re- 
cover against  him  the  actual  damage  he  has  sustained.^  And  in 
order  to  such  recovery,  it  is  not  necessary  for  the  defendant  to 
show  that  he  has  paid  the  actual  damages  he  has  sustained.^ 
And  in  Missouri  it  was  held,  that  evidence  of  special  damages, 
such  as  expenses  of  travel  and  attorney's  fees,  paid  out  in  defence 
of  the  attachment  suit,  cannot  be  given  under  a  general  aver- 
ment of  damages,  but  must  be  specially  averred.  Said  the  court : 
"  Damages  are  either  general  or  special.  General  damages  are 
such  as  the  law  implies  or  presumes  to  have  accrued  from  the 

1  Gaddis  v.  Lord,  10  Iowa,  141,  See  ®  Alexander  v.  Hutchison,  9  Alabama, 
post,  §  744.  825 ;    Donnell   v.   Jones,    13    Ibid.   490  ; 

2  Drummond  v.  Stewart,  8  Iowa.  341.  Metcalf  v.  Young,  43  Ibid.  643;  Pettit  v. 

3  Brandon  v.  Allen,  28  Louisiana  An-  Mercer,  8  B.  Monroe,  51. 

Dual,  60.  s  Metcalf  v.  Young,  43  Alabama,  643. 

<  Churchill  v.  Abraham,  22  IlUnois,  455. 
[140] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  175 

wrong  complained  of.  Special  damages  are  such  as  really  took 
place  and  are  not  implied  by  law.  But  when  the  law  does  not 
necessarily  imply  that  the  plaintiff  sustained  damage  by  the  act 
complained  of,  it  is  essential  that  the  resulting  damage  should  be 
shown  with  particularity  in  order  to  prevent  surprise  to  the  de- 
fendant, which  might  otherwise  ensue  on  the  trial."  ^  After- 
wards the  same  court  held  special  damages  recoverable  under  an 
allegation  that  the  attachment  defendant  "  was  compelled  to  and 
did  lay  out  and  expend  large  sums  of  money,  and  was  put  to 
great  expense  and  trouble  in  and  about  defending  said  action  of 
attachment."  ^ 

§  175.  What  is  this  actual  damage?  On  general  principles  it 
must  be  the  natural,  proximate,  legal  result  or  consequence  of 
the  wrongful  act.  Remote  or  speculative  damages,  resulting 
from  injuries  to  credit,  business,  character,  or  feelings,  cannot 
be  recovered.^  In  Mississippi,  under  a  statute  which  authorized 
"loss  of  trade  and  special  injury  to  business  "  to  be  considered, 
it  was  held,  that  contingent  and  uncertain  profits,  and  losses 
of  profits  in  speculative  trade,  could  not  be  allowed.^  In  Ohio, 
where  a  stock  of  goods  kept  for  sale  by  retail  was  seized,  and  the 
defendant's  business  consequently  suspended,  it  was  held,  that 
the  jury  might  allow  for  natural  and  necessary  loss  of  business 
during  the  time  the  same  was  suspended  ;  but  not  for  injury  to 
the  reputation  of  the  goods,  supposed  to  affect  their  marketable 
value.^  Actual  damage  may  be  properly  comprehended  under 
two  heads :  1.  Expense  and  losses  incurred  by  the  party  in 
making  his  defence  to  the  attachment  proceedings  ;  and  2.  The 
loss  occasioned  by  his  being  deprived  of  the  use  of  his  property 
during  the  pendency  of  the  attachment,  or  by  an  illegal  sale  of 
it,  or  by  injury  thereto,  or  loss  or  destruction  thereof.*  For 
losses  and  trouble  of  these  descriptions,  the  attachment  defend- 

1  State  V.  Blackman,  51  Missouri,  319.  «  Cox  v.  Robinson,  2  Robinson  (La.), 

^  Kelly    V.   Beauchamp,   69  Missouri,  313;    Horn   v.    Bayard,    11    Ibid.    259; 

178.  I'ettit  V.  Mercer,  8  B.  Monroe,  51 ;  Reid- 

3  Donnell  i-.  Jones,  13  Alabama,  490  ;  bar   v.    Berger,   Ibid.   KiU;    McKeady   v. 

Reidliar  v.   Berger,  8   B.    Monroe,    100;  Rogers,    1    Nebraska,   1-24.     In   Missouri 

State  V.  Tliomas,  19  Missouri,  G13  ;  Floyd  it  was  lield,  wliere  a  garnisbee  was  suin- 

V.  Hamilton,  33  Alabama,  235;  Campbell  moned,  tbat  an  element  of  damage  recov- 

V.  Cliumberlain,  10  Iowa,  337.  erable  was  loss  of  interest  on  tlie  debt  of 

*  Myers  v.  Farrell,  47  Mississippi,  281.  tlie   garnisbee   to  tbe  defendant  peiulente 

5  Alexander  v.  Jacoby,  23  Ohio  State,  lite.     State   v.   Beldsmeier,   50   Missouri, 

858.  226. 

[141] 


§  176  ATTACHMENT   BONDS.  [CHAP.  VI. 

ant  should  be  liberally  remunerated.^      But  if  the  property  at- 
tached was  not  the  defendant's,  he  can  recover  no  damages.^ 

§  176.  Under  the  first  head  will  be  allowed  costs  and  expenses 
incurred  in  procuring  the  discharge  of  the  attachment,  and  the 
restoration  of  the  attached  property  ;  ^  costs  and  expenses  in  ob- 
taining testimony  on  a  trial  of  the  truth  of  the  affidavit  on  which 
the  attachment  was  issued  ;  ■*  costs  of  suit  to  which  the  defend- 
ant has  been  subjected,^  as  well  in  an  appellate  court  as  in  that 
in  which  the  suit  was  brought;^  and  fees  paid  to  counsel  for  ser- 
vices in  the  attachment  suit  "*  but  not  fees  to  counsel  for  services 
in  the  action  on  the  bond.^  In  Texas  the  court  refused  to  allow 
attorney's  fees,  because  it  regarded  them  in  the  nature  of  exem- 
plary damages,  and  because  the  defendant  must  have  incurred 
that  expense  in  defending  the  action,  whether  an  attachment  had 
been  sued  out  or  not.^  Where  the  attachment  is  not  the  original 
process,  but  is  ancillary  to  an  action  instituted  by  summons,  no 
costs  or  expenses  connected  with  the  defence  of  the  suit,  in 
aid  of  which  the  attachment  was  obtained,  can  be  recovered.^'' 
Where,  however,  the  suit  is  instituted  by  attachment,  if  the 
action  be  sustained,  but  the  attachment  defeated,  the  rule  in 
Indiana  is,  that  the  attorney's  fees  for  defending  against  the 
attachment  should  be  allowed,  but  not  those  for  defending  the 
action  ;  but  where  both  the  action  and  the  attachment  are  defeated 
because  there  was  no  foundation  J]or  the  former,  the  attorney's  fees 
for  defending  both  the  action  and  the  attachment  may  be  allowed. ^^ 
When  it  is  sought  to  recover  for  counsel  fees  in  defending  the 
attachment,  it  is  held,  in  Kentucky,  that  no  recovery  can  be  had 

1  Offutt  f.  Edwards,  9  Robinson  (La.),  Annual,  620;  Plielps  v.  Coggesliall,  13 
90 ;  Campbell  v.  Chamberlain,  10  Iowa,  Ibid.  440  ;  Accessory  Transit  Co.  v.  Mc- 
337;  Lawrence  r.  Hagerman,  56  Illinois,  Cerren,  Ibid.  214;  Trapnall  v.  McAfee, 
68.  3  Metcalfe  (Ky. ),  34  ;  Seay  v.  Greenwood, 

2  Pinson  v.  Kirsh,  46  Texas,  26.  21   Alabama,   4'Jl  ;  Burton  v.   Smith,  49 

3  Alexander  v.  Jacoby,  23  Ohio  State,  Il)id.  293  ;  Vorse  v.  Phillips,  37  Iowa, 
358.  428;  Morris  v.  Price,  2  Blackford,  457. 

*  Hayden  v.  Sample,  10  Missouri,  215.     Sed  contra,  Heath  v.  Lent,  1  California, 

*  Dunning  v.  Humphrey,  24  Wendell,     410. 

31;    Winsor   v.    Orcutt,   11    Paige,   578;  *  OfTutt  «.  Edwards,  9  Robinson  (La.), 

Trapnall  v.  McAfee,  3  Metcalfe   (Ky.),  90;    Plumb   v.    Woodmansee,    34    Iowa, 

34.  116  ;  Vorse  v.  Phillips,  37  Ibid.  428. 

6  Bennett  v.  Brown,  31  Barbour,  158;  ^  Hughes  v.  Brooks,  36  Texas,  379. 
20  New  York,  99.  '<»  White  v.  Wyley,  17  Alabama,  167. 

7  OffuU  V.  Edwards,  9  Robinson  (La.),  n  Wilson  v.  Root,  43  Indiana,  486.  See 
90  ;    Littlejolin   v.    Wilcox,   2   Louisiana  Behrens  v.  McKenzie,  23  Iowa,  333. 

[142] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  178 

unless  the  fees  were  paid,  or  contracted  to  be  paid,  and  are  proved 
to  be  reasonable.!  As  to  costs,  the  Court  of  Appeals  of  that 
State  held,  that  if  the  whole  costs  turn  upon  the  defence  of  the 
cause  of  action,  they  are  not  recoverable  upon  the  attachment 
bond ;  if  incurred  in  defending  the  cause  of  attachment  alone, 
they  are  recoverable  ;  if  incurred  partly  in  defending  the  cause 
of  action  and  partly  in  defending  the  cause  of  attachment,  they 
are  recoverable  only  so  far  as  incurred  in  defence  of  the  attach- 
ment.^    And  so,  in  effect,  in  Ohio."^ 

§  177.  The  rule  of  damages  under  the  second  head  has  been 
variously  laid  down.  In  New  York,  it  was  said  by  the  Supreme 
Court:  "  The  plaintiff  is  entitled  to  such  damages  as  a  jury  may 
think  he  has  sustained  by  the  wrongful  seizing  and  detaining  of 
his  property.  If  it  was  taken  out  of  his  possession,  he  may  be 
entitled  to  the  value  of  it ;  if  seized  and  left  in  his  possession, 
to  such  damages  as  may  be  awarded  for  the  unlawful  intermed- 
dling with  his  property."  *  But  the  same  court  afterwards  held, 
that  no  more  than  nominal  damages  can  be  recovered,  where  the 
defendant  is  not  dispossessed.^ 

§  178.  In  Kentucky,  it  was  determined  that  the  plaintiff  can 
only  recover  damages  for  the  injury  lie  has  sustained  by  being 
deprived  of  the  use  of  his  property,  or  its  loss,  destruction,  or  de- 
terioration.^ Subsequently,  the  court  stated  the  rule  on  some 
points  more  specifically,  and  said :  "  The  inquiry  in  regard  to 
the  injury  which  the  party  may  sustain  by  the  deprivation  of  the 
use  of  his  property,  should  be  limited  to  the  actual  value  of  the 
use  ;  as,  for  example,  the  rent  of  real  estate,  the  hire  or  services 
of  slaves,  or  the  value  of  the  use  of  any  other  species  of  property 
in  itself  productive.  The  property  in  this  case  was  not  of  that 
character,  and  the  injury  from  being  deprived  of  its  use  should 
be  restricted  to  the  interest  on  the  value  thereof.  For  any  injury 
beyond  that,  the  damages  would  be  conjectural,  indefinite,  and 
uncertain,  and  the  plaintiff  cannot  recover  in  this  action.     If, 

'  Shultz  V.  Morrison,  3  Metcalfe  (Ky.),  *  Dunning  v.  Humphrey,  24  Wendell, 

98.  31. 

2  Johnson  v.  Farmers'  Bank,  4  Bush,  *  Groat  v.  Gillespie,  25  Wendell,  383. 

283.  8  Pettit  V.  Mercer,  8  B.   Monroe,  51. 

s  Alexander  v.  Jacoby,  23  Ohio  State,  See  Wallace  v.  Finberg,  46  Texas,  35. 
858. 

[143] 


§  181  ATTACHMENT  BONDS.  [CHAP.  VI. 

however,  tlie  propert}-  is  damaged,  or  if  when  returned  it  should 
be  of  less  value  than  wlien  seized,  in  consequence  of  the  depreci- 
ation in  price,  or  froui  aii}'  other  cause,  for  such  differeuce  the 
plaintiff  would  be  entitled  to  recover.  But  this  rule,  so  far  as  it 
relates  to  tiie  fall  or  depreciation  of  the  price,  would  not  be  ap- 
plicable to  every  species  of  property.  It  would,  however,  clearly 
apply  in  this  case,  as  it  was  the  trade  and  business  of  the  party 
to  vend  the  goods  attached,  and  not  to  keep  them  for  mere  use."  ^ 
In  Mississippi,  it  was  decided  that  where,  between  the  levy  and 
the  dissolution  of  the  attachment,  the  goods  levied  on  had  depre- 
ciated in  market  value,  the  defendant  was  entitled  to  recover  the 
amount  of  the  depreciation.^  And  so  in  California.^  But  such 
depreciation  shoukl  be  specially  pleaded.^ 

§  179.  The  court  properly  intimated,  in  the  language  just 
quoted,  that  the  allowance  for  depreciation  in  the  value  of  the 
property  while  under  attachment  would  not  be  applicable  to 
every  species  of  property.  For  instance,  if  real  estate  be  at- 
tached, without  interfering  with  the  defendant's  possession, 
nothing  can  be  recovered  in  an  action  on  the  bond,  on  account  of 
depreciation  in  its  value  during  the  pendency  of  the  attachment.^ 

§  180.  In  Louisiana  the  following  case  arose.  Certain  parties 
took  out  an  attachment  in  February,  1842,  against  the  Girard 
Bank,  and  seized  certain  choses  in  action,  which,  at  the  time,  and 
for  some  months  after,  were  worth  in  New  Orleans  |18,500.  In 
August,  1812,  the  attachment  plaintiffs,  having  obtained  judg- 
ment, caused  the  choses  in  action  to  be  sold  by  the  sheriff,  at  a 
great  sacrifice,  for  the  sum  of  $9,140.  Afterwards,  the  judgment 
was  reversed,  and  the  assignees  of  the  bank  sued  the  attachment 
plaintiffs  for  the  difference  between  these  sums,  and  recovered 
judgment  for  <|5,145  damages.  Whether  the  suit  was  on  the 
attachment  bond  does  not  appear  in  the  report  of  the  case.  The 
Supreme  Court  affirmed  the  judgment,  holding  the  plaintiffs  en- 
titled to  recover  the  actual  damage  sustained.^ 

§  181.  In  New  York,  an  action  was  brought  on  an  attachment 

1  Reidhar  v.  Berger,  8  B.  Monroe,  160 ;  *  Wallace  v.  Finberg,  46  Texas,  35. 
Carpenter  v.  Stevenson,  6  Bush,  259.                  *  Heath  v.  Lent,  1  California,  410. 

2  Fleming  v.  Bailey,  44  Mississippi,  ^  Horn  v.  Bayard,  11  Robinson  (La.), 
132.  269. 

3  Frankel  v.  Stern,  44  California,  168. 

[144] 


CHAP.  VI.]  ATTACHMENT   BONDS.  §  183 

bond,  where  it  appeared  that  the  plaintiff  in  the  attachment  was 
nonsuited  ;  but  immediately  after  sued  out  another  attachment, 
and  seized  the  same  property  that  was  attached  in  the  first  suit ; 
and  afterwards,  on  obtaining  judgment,  caused  the  property  to 
be  sold  under  his  execution.  It  was  held,  that  the  application 
of  the  defendant's  property  to  the  satisfaction  of  the  judgment  in 
the  second  suit,  was  properly  admissible  in  evidence,  to  reduce 
the  amount  of  damages  sought  to  be  recovered.^ 

§  182.  The  liability  of  an  attachment  plaintiff  for  actual  dam- 
ao-e  exists  as  well  where  the  attachment  is  sued  out  by  his  attor- 
ney  as  where  he  obtains  it  himself;  but  no  malice  exhibited  by 
the  attorney  in  his  proceedings  can  be  given  in  evidence  against 
his  client,  so  as  to  make  him  liable  for  exemplary  damages.^  And 
where  the  attachment  was  taken  out  by  an  agent,  who  also  exe- 
cuted the  bond,  the  declaration  on  the  bond  was  held  to  be 
insufficient,  which  charged  that  the  attachment  was  wrongfully 
and  vexatiously  sued  out  by  the  obligors  in  the  bond :  it  should 
have  averred  that  it  was  so  sued  out  by  the  plaintiff.^ 

§  183.  An  administrator  who  sues  out  an  attachment  and  exe- 
cutes the  bond,  describing  himself  therein  as  administrator,  cannot 
be  sued  on  the  bond  in  his  representative  character,  nor  can  he 
subject  the  estate  to  an  action  for  damages  by  his  tortious  con- 
duct. He  is  liable  to  respond  personally  for  the  injury,  and 
is  properly  sued  in  his  individual  character.^ 

1  Earl  V.  Spooner,  3  Denio,  246.  ^  McCuUough  v.  Walton,  11  Alabama, 

2  Kirksey  v.  Jones,  7  Alabama,  622 ;     492  ;  WsvUace  v.  Finber^,  46  Texas,  35. 
McCuUough  i;.  Walton,  11  Ibid.  492.  *  Gilmer  v.  Wier,  8  Alabama,  72. 

10  [145] 


EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CHAP.  Yll. 


CHAPTER     VII. 

EXECUTION   AND   RETURN   OF   AN   ATTACHMENT. 

§  183  a.  The  power  and  duty  of  an  officer  to  make  an  attach- 
ment depend  upon  his  possession  of  process  authorizing  it.  The 
duty  may  be  qualified,  or  he  may  be  relieved  of  it  altogether,  by 
instructions ;  but  it  exists  only  while  the  power  exists,  and  both 
come  into  existence  when  the  process  is  placed  in  his  hands. 
Until  then  he  has  no  authority  to  act,  and  cannot  be  justified  in 
interfering  with  the  property  of  others,  though  he  have  informa- 
tion that  the  process  has  been  issued.  Thus,  in  Connecticut,  an 
officer  lodged  with  the  town  clerk  a  certificate  that  he  had 
attached  certain  real  estate  of  a  defendant  in  an  attachment  suit ; 
which,  if  the  writ  had  been  in  his  possession,  would,  under  the 
law  of  that  State,  have  constituted  a  valid  attachment ;  but  it 
appeared  that,  when  he  so  lodged  the  certificate,  he  had  no  writ 
in  his  hands,  and  did  not  receive  any  till  the  day  after  that  on 
which  the  lodgment  of  the  certificate  was  made,  but  acted  upon 
information  that  a  writ  had  been  issued ;  and  it  was  held  that 
there  was  no  valid  attachment.^ 

§  184.  When  a  writ  of  attachment  is  placed  in  the  hands  of  an 
officer  to  be  executed,  his  first  duty — which  he  cannot  ever 
safel}'  overlook  —  is,  to  ascertain  that  it  was  issued  by  an  officer 
having  legal  power  to  issue  it ;  for  if  issued  by  one  having  no 
such  power,  it  is  absolutely  void,  and  will  afford  no  protection 
whatever  to  him  who  acts  under  it.  Nor  can  the  court  out  of 
which  it  purported  to  have  issued  acquire  through  it,  or  through 
the  judgment  in  the  case,  any  right  to  control  the  disposition  of 
the  money  accruing  from  a  sale  of  attached  property.  Thus, 
where  an  attachment  was  issued  b}--  the  clerk  of  a  court,  who  had 
no  lawful  authority  to  issue  it,  and  under  it  property  was  seized 
and  sold,  and  the  proceeds  thereof  were  placed  in  the  hands  of 

1  Wales  V.  Clark,  43  Conn.  183. 
[146] 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  185 

the  clerk  as  an  officer  of  the  court ;  and  the  court  ordered  a  part 
of  the  money  to  be  paid  to  the  hmdlord  of  the  building  in  which 
the  attached  goods  were  found,  as  rent  due  him  therefor  from  the 
attachment  defendant ;  it  was  held,  that  the  money  was  in  the 
hands  of  the  clerk  as  an  individual  bailee,  and  was  not  subject  to 
the  order  of  the  court,  and  that  the  order,  not  being  within  the 
jurisdiction  of  the  court,  was  void.^ 

§  184  a.  If  the  writ  be  so  defective  that  it  is  void,  a  levy  under 
it  cannot  be  cured  by  amendment,  so  as  to  cut  off  the  rights  of 
third  parties  in  the  attached  property,  acquired  after  the  levy. 
In  Maine,  there  is  a  statute  providing  that  no  attachment  "  shall 
be  valid,  unless  the  plaintiff's  demand  on  which  he  founds  his  ac- 
tion, and  the  nature  and  amount  thereof,  are  substantially  set 
forth  in  proper  counts,  or  a  specification  of  such  claim  shall  be 
annexed  to  such  writ."  The  Supreme  Court  of  that  State  holds, 
that  a  writ  based  on  a  money  count  containing  no  specification 
of  the  nature  and  amount  of  the  plaintiffs  demand,  is  void ;  ^ 
and  that  an  amendment  of  the  writ  before  judgment  will  not 
make  it  so  far  valid  as  that  the  title  acquired  under  it  will  pre- 
vail against  a  mortgage  executed  between  the  service  of  the  writ 
and  the  judgment.^ 

§  185,  If  the  writ  be  in  legal  form,  and  issued  out  of  a  court 
having  competent  jurisdiction,  it  will  be  a  complete  justification 
to  the  ofiicer  in  attaching  the  defendant's  property,  and  in  using, 
to  effect  the  attachment,  all  necessary  force ;  and  there  can, 
therefore,  be  no  obligation  on  him  to  investigate  whether  the 
preliminary  steps  required  for  obtaining  it  have  been  pursued.* 
And  though  the  process  may  be  erroneous  and  voidable,  that  fact 
will  neither  prevent  him  from  protecting  himself  by  it,  nor  jus- 
tify him  in  omitting  to  do  his  duty  in  its  execution.^     Nor  has  he 

1  Goldsmith  v.  Stetson,  89  Alabama,  *  Fulton  v.  Heaton,  1  Barbour,  552; 
183.  Nor  can  the  money,  in  such  case,  Kirksey  v.  Dubose,  19  Alabama,  43 ; 
be  reached  by  creditors  of  tlie  attachment  Banta  v.  Reynolds,  3  B.  Monroe,  80; 
defendant  by  garnishment  of  the  clerk.  Garnet  v.  Wimp,  Ibid.  360  ;  Ela  v.  Sliep- 
See  post,  §  545.  ard,  32  New  Hamp.  277  ;  Owens  r.  Starr, 

2  Saco  V.  Hopkinton,  29  Maine,  2C8;  2  Littell,  230;  Lovier  v.  (iilpin,  6  Dana, 
Osgood  V.  Holyoke,  48  Ibid.  410;  Neally  321 ;  Walker  v.  Woods,  15  California,  66; 
V.  Judkins,  Ibid.  5G6 ;  Hanson  v.  Dow,  Booth  i'.  Kees,  26  Illinois,  45;  State  v. 
51  Ibid.  1(55.  Foster,  10  Iowa,  435. 

8  Drew   V.   Alfred  Bank,   55    Maine,  ^  Sievenson  v.  McLean,  5  Humphreys, 

450.  332;    Reams    v.    McNail,   9    Ibid.   542; 

[147] 


§  185  C  EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

any  tiling  to  do  witli  the  question  whether  the  debt  is  actually  due. 
It  may  be  that  no  cause  of  action  exists ;  but  with  that  he  has 
no  concern  ;  for  it  is  not  his  province  to  decide  the  question  of 
liability  between  the  parties.^ 

§  185  a.  When  the  officer  attaches  property  found  in  the  pos- 
session of  the  defendant,  he  can  always  justify  the  levy  by  the 
production  of  the  attachment  writ,  if  the  same  was  issued  by  a 
court  or  officer  having  lawful  authority  to  issue  it,  and  be  in  legal 
form.  But  when  the  property  is  found  in  the  possession  of  a 
stranger  claiming  title,  the  mere  production  of  the  writ  will  not 
justify  its  seizure  thereunder ;  the  officer  must  go  further,  and 
prove  not  only  that  the  attachment  defendant  was  indebted  to 
the  attachment  plaintiff,  but  that  the  attachment  was  regularly 
issued.^  If,  in  the  attachment  suit,  judgment  was  rendered  for 
the  plaintiff,  that  will  establish  the  indebtedness  ;  if  not,  the 
officer  must  prove  it  otherwise,  in  order  to  justify  his  proceed- 
ing.^ Of  course,  the  party  whose  property  has  been  wrongfully 
taken  may  prove  that  there  was  no  indebtedness.'*^ 

§  185  b.  Though  a  writ  issued  by  competent  authority,  and 
regular  on  its  face,  will  afford  protection  to  an  officer  acting 
under  it,  it  does  not,  if  issued  irregularly,  afford  the  same  protec- 
tion to  the  party  who  caused  its  issue.  The  responsibility  rests 
upon  him,  not  only  to  see  that  it  is  right  in  those  particulars,  but 
that  it  was  regularly  issued  ;  for  if  it  be  set  aside  for  irregularity, 
that  makes  the  party  a  trespasser  ab  initio,  and  affords  him  no 
protection  as  to  what  has  been  done  under  it  :  as  to  him,  it  is 
then  as  though  no  process  had  ever  been  issued,  and  the  prop- 
erty attached  had  been  taken  and  detained  by  his  order  without 
any  process.^ 

§  185  c.  When  an  attachment  fails  because  the  writ  was  issued 

Shaw  V.  Holmes,  4  Heiskell,  692  ;  Bogert  Sexey  v.  Adkinson,  34   California,  346  ; 

V.   Phelps,    14   Wisconsin,   88;    Cross   v.  Miller  v.  Bannister,  109  Mass.  *289  ;  Braley 

Phelps,  16  Barbour,  502.  v.   Byrnes,  20  Minnesota,  435 ;  Maley  v. 

1  Livingston  v.  Smith,  5  Peters,  90 ;  Barrett,  2  Sneed,  501 ;  Cross  v.  Phelps, 

Walker    v.    Woods,    15    California,    66;  16  Barbour,  502;  Jones  v.  Lake,  2  Wis- 

Mamlock  v.  White,  20  Ibid.  598.  consin,  210 ;  Norton  v.  Kearney,  10  Ibid. 

'^  Tiiornburgh   v.  Hand,  7    California,  44^ ;  Bogert  v.  Phelps,  14  Ibid.  88. 
554;  Noble  v.    Holmes,   5   Hill    (N.  Y.),  *  Cooky.  Hopper,  23  Michigan,  511. 

194;  Van  Etten  v.  Hurst,  6  Ibid.  311.  5  Kerr  v.   Mount,  28  New  York,  659  ; 

3  Damon    v.    Bryant,    2    Pick.    411 ;  Wehle  u.  Butler,  61  Ibid.  245. 
Rlnchey  v.  Stryker,  28  New  York,  45; 

ri48i 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  187 

without  jurisdiction,  or  irregularly,  and  the  attaching  plaintiff  is 
sued  in  trespass  for  seizing  property  thereunder,  he  cannot  set  up 
as  a  defence  that  he  returned  the  property  to  the  defendant,  un- 
less the  latter  accepted  it.^  Nor  can  he  show,  in  mitigation  of 
damages,  that  the  property  was  subsequently  sold  under  an 
execution  in  his  favor  against  the  defendant.^  But  if  another  cred- 
itor, without  any  connivance  with  the  defeated  plaintiff,  after- 
wards causes  the  property  to  be  sold  under  a  valid  execution 
against  the  defendant,  that  fact  may  be  shown  in  mitigation  of 
damages,  since  the  defendant  has,  through  such  sale,  received  the 
benefit  of  the  application  of  the  property  to  his  debt  to  a  third 
person.^ 

§  186.  If  a  writ  of  attachment  be  placed  in  the  hands  of  a 
person  specially  deputed  to  serve  it,  he  has  all  the  powers  which 
may  be  exercised  by  a  sheriff  in  the  premises,  but  he  is  not  enti- 
tled of  right  to  be  recognized  or  obeyed  as  a  sheriff,  or  known 
officer,  but  must  show  his  authority,  and  make  known  his  busi- 
ness, if  required  by  the  party  who  is  to  obey  that  authority.  In 
this  particular  he  represents  a  special  bailiff,  rather  than  a  known 
officer.  One  so  deputed  may,  equally  with  a  sheriff,  break  into 
a  warehouse  to  get  access  to  goods,  where  admittance  is  refused 
him.* 

§  187.  An  attachment  comes  within  the  terms  of  a  statute  for- 
bidding the  service  on  Sunday  of  any  "  writ,  process,  order,  war- 
rant, judgment,  or  decree  ;  "  and  a  service  of  it  on  that  day  will 
be  set  aside  on  motion ;  but  cannot  be  reached  by  a  plea  in 
abatement.^  But  where  there  is  no  prohibitory  statute,  it  may 
be  executed  on  that  day.^  If  a  writ  be  delivered  to  an  officer  on 
Sunday,  he  is  not  to  be  regarded  as  having  officially  received  it, 
nor  can  he  be  held  responsible  for  not  executing  it  on  that  day. 
He  may,  if  he  choose,  recognize  the  receipt  of  it,  but  that  will 

1  Ilanmer  v.  Wilsey,  17  Wendell,  91  ;     Ct.  1  ;  43  Howard  Tract.  6 ;  12  Abbott 
Otis  V.  .Jones,  21   Ibid.  394 ;  Higgins  v.     Pract.  139  ;  61  New  York,  24-5. 
Whitney,  24  Ibid.  379;  Ball  v.  Liney,  48  3  Sherry  v.  Schuyler,  2  Hill  (N.   Y.), 

New  York,  6 ;  Tiffany  v.  Lord,  65  Ibid.     204 ;    Wehle   v.   Butler,   61   New   York, 
810.  245. 

■•*  Higgins    V.   Wliitney,   24   Wendell,  *  Burton  v.  Wilkinson,   18   Vermont, 

879;   Lyon    v.  Yates,  52   Barbour,  237;     186. 
Wehle  V.  Butler,  36  New  York  Superior  *  Cotton  v.  Huey,  4  Alabama,  56. 

6  Matthews  v.  Ansley,  31  Alabama,  20. 
[14U] 


§  188       EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VH. 

impose  on  him  no  liiglier  or  other  duties,  than  if  he  had  received 
it  on  the  next  day.^  In  Enghmd,  it  is  said  that  Christmas  is 
considered  a  dies  non  juridicus ;  but  it  was  held  not  so  in  this 
country.^ 

§  187  a.  The  authority  of  an  officer  to  levy  an  attachment  con- 
tinues until  the  return  day  of  tlie  writ,  or  until  he  has  actually 
returned  it,  if  he  do  so  before  that  day.  The  fact  that  before 
the  return  day  he  indorsed  on  the  writ  a  return  of  "  no  property 
found,"  but  kept  the  writ  in  liis  hands,  will  not  prevent  his  sub- 
sequently levying  it,  and  making  return  of  the  levy,  at  any  time 
before  the  return  day.^ 

§  187  b.  No  levy  made  after  the  return  day  of  the  writ  will  be 
of  any  force,  at  least  as  against  a  third  party  claiming  the  prop- 
erty. Thus,  where  an  attachment  was  made  on  the  28th  of 
December,  1822,  under  a  writ  dated  February  28,  1822,  and  re- 
turnable to  the  next  May  Term  of  the  court  after  its  date ;  and 
trover  was  brought  against  the  officer  for  the  property  ;  it  was 
held,  that  the  officer  should  not  be  permitted  to  prove  that  the 
writ  was  in  fact  sued  out  on  the  first-named  date,  and  was  in- 
tended to  be  made  returnable  to  May  Term,  1823,  but  the  word 
"  February  "  had  been  inserted  by  mistake  ;  and  that,  as  the 
writ  was  made  returnable  at  May  Term,  1822,  nothing  could  be 
done  under  it  in  the  following  December.*  So,  where  the  writ 
was  issued  on  the  21st  of  May,  and  made  returnable  to  the  next 
June  Term  of  the  court,  but  was  indorsed  "  November  Term, 
1866;"  and  on  the  10th  of  August  after  its  issue  was  levied  on 
real  estate  ;  the  levy  was  held  of  no  force  as  against  a  subsequent 
mortgage  of  the  land.^ 

In  determining  the  return  day  of  the  writ,  where  the  day  of 
the  month  on  which  it  is  returnable  is  specified,  but  without 
mention  of  the  year,  or  other  designation  of  the  time,  it  will  be 
considered  that  the  next  month  of  that  name  after  the  date  of 
the  writ  was  intended.^ 

§  188.  It  is  the  duty  of  an  officer,  on  receiving  a  writ  of  attach- 

1  Whitney  v.  Butterfield,  13  California,  ^  Peters  v.  Conway,  4  Bush,  566. 

335.  ^  Kelly   v.   Oilman,   29    New    Hamp. 

'-i  Starke  v.  Marshall,  3  Alabama,  44.  385;  Nash  v.  Mallory,  17  Michigan,  232; 

•*  Courtney  i\  Carr,  6  Iowa,  238.  Vinton  v.  Mead,  Ibid.  388. 
*  Dame  v.  Fales,  3  New  Hamp.  70. 
[15U] 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  189 

ment,  to  levy  it  on  any  property  of  the  defendant  he  can  find,  of 
the  description  recited  in  the  writ.  It  is  never  discretionary  with 
him,  if  he  finds  such  property,  whether  to  execute  the  writ  or 
not ;  nor  is  he  allowed  to  provide  for  the  plaintiff  another  rem- 
edy than  that  afforded  by  the  writ,  for  the  collection  of  his  debt. 
He  must  take  the  property  into  the  custody  of  the  law.  Any 
agreement  to  induce  him  to  omit  the  performance  of  his  duty  is 
void,  upon  considerations  of  public  policy.  Thus,  where  an  offi- 
cer, having  a  writ  of  attachment  in  his  hands,  was  induced  to 
forbear  levying  it,  by  the  defendant's  executing  a  bond  in  favor  of 
the  plaintiff,  with  security,  conditioned  to  save  the  ofiicer  harm- 
less by  reason  of  his  not  proceeding  to  attach  property,  and  to 
pay  whatever  judgment  might  be  rendered  against  the  defend- 
ant ;  and  the  plaintiff  afterwards  recovered  judgment  in  the 
attachment  suit,  and,  failing  to  make  the  money  therein,  sued 
upon  the  bond ;  it  was  held,  that  no  action  could  be  maintained 
on  it,  and  that  it  was  not  such  a  security  as  the  plaintiff,  by 
adopting,  could  render  valid. ^ 

§  189.  To  ascertain  who  is  the  actual  owner  of  personal  prop- 
erty, notwithstanding  the  indication  arising  from  acts  of  owner- 
ship, is  often  attended  with  difliculty  ;  and  an  ofiicer  ought  not  to 
be  holden  to  proceed  to  make  an  attachment,  without  an  indem- 
nity, where  there  is  great  danger  of  his  committing  a  trespass  in 
so  doing ;  and  where  he  has  good  reason  to  doubt  whether  goods 
are  the  property  of  the  defendant,  he  may  insist  on  the  plaintiffs 
showing  them  to  him,  and  also  on  being  indemnified.^ 

But  if  he  would  avail  himself  of  the  right  to  require  indemnity, 
he  must  inform  the  party  who  placed  the  writ  in  his  hands  that 
he  objects  to  proceeding  without  it.  He  cannot  neglect  to  execute 
the  writ,  and  then  justify  his  neglect  by  the  failure  of  the  party 
to  indemnify  him,  when  he  asked  no  indemnity.^ 

If  property  be  attached  without  any  controversy  at  the  time 
as  to  the  title,  and  it  is  afterwards  claimed  by  a  third  person,  it 

1  Cole  V.  Parker,  7  Iowa,  167  ;  Denson  York,  115  ;  Sliriver  v.  Harbaugh,  37  Penn. 
V.  Sledge,  2  Devereux,  136.  State,  399.     In  Tennessee  it  is  held,  that 

2  Bond  V.  Ward,  7  Mass.  12.3;  Sibley  there  is  no  law  authorizing  an  officer  to 
V.  Brown,  15  Maine,  185 ;  Hanlett  v.  require  indemnity  before  levying  an 
Bloilgett,  17  New  Hamp.  298;  Perkins  attachment  on  disputed  property.  Shaw 
V.  Pitman,  M  Ibid.  261  ;  Smith  v.  Osgood,  v.  Holmes,  4  Ileiskell,  G'J2. 

46  Ibid.  178;  Smith  <•.  Cicotte,  11  Michi-  ^  Perkins  v.  Pitman,  34  New  Hamp. 

gan,  38;j ;  Giiamberlain  i'.  Beller,  18  New     261. 

[151] 


§  190        EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

is  held  in  New  Hampshire,  that  the  officer  may  demand  indem- 
nity before  proceeding  to  sell  the  property  under  the  attachment 
or  under  execution  issued  in  the  attachment  suit.^  This,  how- 
ever, would  hardly  be  considered  applicable  to  any  system  which 
allowed  the  third  person  to  intervene  in  the  attachment  suit,  and 
have  his  claim  to  the  property  adjudicated  therein  directly  by  the 
court. 

If  there  are  several  attaching  creditors  of  the  same  property, 
and  some  give  indemnity  and  others  refuse  to  do  so,  the  latter 
will  be  precluded  from  claiming  the  avails  of  the  attached  prop- 
erty, even  though  their  attachments  under  the  original  writ  were 
prior  to  those  of  the  parties  who  gave  indemnity.'^ 

When  a  plaintiff,  at  the  request  of  the  officer,  and  with  knowl- 
edge that  the  goods  to  be  attached  are  claimed  by  another  than 
the  defendant,  gives  a  bond  of  indemnity  to  the  officer  against 
all  suits,  damages,  and  costs  by  reason  of  the  attachment,  he 
thereby  assumes  the  responsibility  of  the  officer's  acts,  and  is  lia- 
ble to  the  owner  for  the  subsequent  conversion  of  the  goods  ;  and 
an  unsatisfied  judgment  for  the  same  cause  against  the  officer  is 
no  bar  to  this  recourse  against  the  plaintiff.^ 

§  189  a.  When  an  officer  takes  a  writ,  with  directions  to  serve 
it  in  a  particular  manner,  without  requiring  of  the  plaintiff  an 
indemnity,  he  is  bound  to  serve  it,  if  he  can,  according  to  the 
instructions ;  and  it  is  not  a  sufficient  excuse  for  him  that  he  sub- 
sequently obtained  information  which  led  him  to  suppose  that  a 
service  in  the  manner  directed  would  be  ineffectual  for  the  inter- 
ests of  the  plaintiff,  and  even  expose  himself  to  an  action,  if  his 
supposition  was  erroneous,  and  a  service  in  the  manner  directed 
would,  in  fact,  have  been  legal  and  effectual.  He  is  liable  unless 
he  can  show  that  he  could  not  lawfully  have  obeyed  the  direc- 
tions.^ 

§  190.  The  officer  is  bound  to  attach  sufficient  property,  if  it 
can  be  found,  to  secure  the  amount  of  the  plaintiffs  claim,  as 
stated  in  the  writ,  and  failing  in  this  he  will  be  liable  for  any  de- 
ficiency.'^    Where,  therefore,  an  officer  levied  three  attachments 

1  Smith  V.   Osgood,   4G    New  Hanip.  3  KnigJit  v.  Nelson,  117  Mass.  458. 
178.                                                                             *  Kaiilett  v.  Blodgett,  17  New  Hamp. 

2  Smith   V.   Osgood,   46  New   Hamp.     298. 

178.  5  In  Fitzgerald  v.  Blake,  42  Barbour, 

[152] 


CHAP.  VII.]     EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  191 

successively  on  a  defendant's  personal  property ;  and  having 
received  a  fourth  writ,  levied  it  on  his  real  estate,  the  proceeds 
of  which  were  absorbed  in  satisfying  that  writ ;  and  it  was  after- 
wards ascertained  that  the  personalty  on  which  the  preceding 
three  writs  were  levied  was  not  sufficient  to  satisfy  them  ;  it  was 
held,  that  the  officer  was  liable  for  the  deficiency  ;  that  he  might 
have  levied  all  the  writs  on  all  the  property  ;  that  he  was  bound 
at  his  peril,  if  he  did  not  levy  on  all,  to  levy  on  enough  to  satisfy 
the  demands ;  and  that  he  was  not  excused  by  the  fact  that  an 
appraisement  of  the  personalty,  made  after  the  levy,  indicated  an 
amount  sufficient  for  that  purpose.^  If  in  such  case  an  officer 
represent  to  the  plaintiff  that  he  made  an  attachment,  when  in 
point  of  fact  he  did  not,  and  thereby  induce  the  plaintiff  to  rely 
upon  it,  and  to  forego  making  any  further  attachment,  when  he 
might  have  done  so,  the  officer  is  bound  by  his  representation, 
and  when  sued  by  the  plaintiff  for  failing  to  attach  sufficient 
property,  is  estopped  from  showing  that  in  fact  he  made  no  legal 
attachment.2  But  if,  by  a  mistake  of  the  plaintiff  in  making  out 
the  writ,  the  amount  which  the  sheriff  is  required  to  secure  is  less 
than  the  debt  sued  on,  and  the  sheriff  receive  from  the  defendant 
a  sum  of  money  equal  to  the  amount  named  in  the  writ  and  costs, 
and  release  property  attached  by  him,  which  was  of  sufficient 
value  to  have  secured  the  whole  debt ;  the  sheriff  will  not  be  held 
responsible  for  the  difference  between  the  amount  paid  him  and 
that  of  the  judgment  recovered  by  the  attachment  plaintiff;  for 
he  was  misled  by  the  mistake  of  the  plaintiff  himself.^ 

§  191.  It  is  the  duty  of  the  officer  to  execute  the  writ  as  soon 
as  he  reasonably  can  after  it  comes  into  his  hands ;  for  if  by  his 
unnecessary  delay  in  seizing  property  or  summoning  garnishees 

513,  the  Supreme  Court  of  New   York  able   discretion   in   perfomiing  his  duty, 
used  the  following  language :  "  It  is  the  The  plaintiff  has  no  autliority  to  dictate 
duty  of  the  sheriff  to  attacii  so  much  of  the  extent  of  the  levy,  any  more  than 
the  property  of  the  defendant  as  will  be  the  defendant  has  to  limit  it.     Tiie  plain- 
sufficient   to    satisfy   the    plaintiff's    de-  tiff  can  point  out  property  to  the  sheriff, 
mand,  with  costs  and  expenses.     In  this  and  require  a  levy  upon  so  much  as  will 
case  tiie  sheriff  has  levied  on  so  much  as  be  sufficient,  but  tlie  sheriff  must  decide 
he  consiilered  sufficient.     The  extent  of  for  himself,  upon  the  responsibility  which 
the  seizure  was  within  the  exercise  of  a  attaches  to  his  office,  as  to  the  extent 
sound   discretion   by  the  sheriff.     If  his  and  sufficiency  of  the  seizure." 
levy  was  excessive,  the  defendant  might  l  Ransom  v.  Halcott,  18  liarbour,  56. 
complain  ;  and  if  insufficient,   the   plain-          2  Howes  v.  Spicer,  23  Vermont,  508. 
tiff.     He  is  responsible  to   both   parlies          '^  Rage  v.  Belt,  17  Missouri,  263. 
for  the  exercise  of  a  sound  and  reason- 

[153] 


§  191  a    EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

the  plaintiff  loses  his  debt,  the  officer  will  be  liable;  and  his  lia- 
bility will  not  be  avoided  by  his  showing  that  he  was  not  specially 
required  to  serve  the  writ  immediately,  or  that  it  Avas  in  fact 
served  A\ithin  the  time  authorized  by  its  terms.^  And  after  the 
attachment  is  begun,  it  should  be  continued  with  as  little  inter- 
ruptitin  as  possible.  Delay  or  interruption  in  the  discharge  of 
this  duty  may  involve  the  officer  in  serious  consequences.  No 
general  rule  governing  such  cases  can  well  be  laid  down  ;  but 
each  case  must  depend  very  much  on  its  particular  circumstances. 
As  a  proposition  generally  applicable,  however,  it  may  be  said 
that  the  officer  should  take  care  that  his  levy  be  a  continuous  and 
single  act,  as  contradistinguished  from  a  number  of  distinct  acts, 
performed  at  different  times,  and  not  in  reasonable  and  necessary 
connection. 

§  191  a.  While  the  law  holds  an  officer  to  a  strict  performance 
of  his  duty  in  the  execution  of  process  placed  in  his  hands,  and 
tolerates  no  wanton  disregard  of  that  duty,  nor  sanctions  any 
negligence,  yet  it  requires  no  impossibilities,  nor  does  it  impose 
unconscionable  exactions.  When  an  attachment  comes  to  his 
hands,  he  must  execute  it  with  all  reasonable  celerity;  but  he  is 
not  held  to  the  duty  of  starting,  on  the  instant  after  receiving  it, 
to  execute  it,  without  regard  to  other  business  demanding  his 
attention,  unless  some  special  reasons  for  urgency  exist,  and  are 
made  known  to  him.  Reasonable  diligence  is  all  that  is  required 
of  him  in  such  a  case ;  and  what  is  reasonable  diligence  depends 
upon  the  particular  facts  of  the  case.  If,  for  example,  an  officer 
receives  no  special  instruction  to  execute  a  writ  at  once,  and 
there  is  no  apparent  necessity  for  its  immediate  execution,  it 
would  not  be  contended  that  he  was  under  the  same  obligation  to 
execute  it  instantaneously  as  if  he  were  so  instructed,  or  there 
were  apparent  cii'cumstances  of  urgency.  But  in  the  case  of  an 
attachment  sued  out  on  the  ground  of  the  defendant's  fraud,  or 
his  being  in  the  act  of  leaving  the  State,  or  removing  his  property, 
the  very  fact  of  the  issue  of  the  writ  on  such  ground  would  seem 
to  indicate  to  the  officer  the  necessity  for  immediate  action. 
These  views  were  applied,  in  California,  to  a  case  where  a  writ 
was  placed  in  the  hands  of  a  sheriff  between  nine  and  ten  o'clock 
on  a  Sunday  night,  and  another  writ  was  delivered  to  a  deputy 

1  Kennedy  v.  Brent,  6  Crancli,  187. 

[154] 


CHAP.  VII.]     EXECUTION  AND  RETURN  OF  ATTACHMENT.       §  193 

of  his,  at  fifteen  minutes  after  twelve  o'clock,  and  was  executed 
by  the  deputy  at  one  o'clock  on  Monday  morning ;  of  which 
second  writ  tlie  sheriff  had  no  knowledge  until  after  it  was  exe- 
cuted ;  and  the  service  by  the  deputy  held  the  property  in  favor 
of  the  second  attachment.  The  plaintiff  in  the  first  attachment 
sued  the  sheriff  for  not  levying  it  in  due  time;  but  it  was  held, 
that  the  attachment  was  not  legally  in  his  hands  until  the  expira- 
tion of  Sunday,  and  that  his  delay  in  executing  it,  for  one  hour 
after  midnight,  did  not  entitle  the  plaintiff  to  recover.^ 

§  191  h.  It  not  unfrequently  happens  that  no  property  is  found 
whereon  to  levy  an  attachment,  and  the  action  proceeds  to  judg- 
ment under  the  summons.  In  such  case  the  rendition  of  the  judg- 
ment supersedes  the  attachment,  and  thereafter  no  action  can  be 
taken  under  it.^ 

§  192.  Where  a  variety  of  articles  are  attached,  and  it  requires 
considerable  time  to  complete  the  service  of  the  process,  if  the 
officer,  after  he  has  begun  it,  continues  in  it  with  no  unnecessary 
delay  until  he  has  secured  all  the  goods,  the  taking  is  to  be 
treated  as  one  act.  But  where  an  officer  took  and  removed  sun- 
dry finished  carriages,  to  an  amount  which  he  deemed  sufficient 
to  secure  the  demand  in  the  writ,  and,  on  the  day  following,  hav- 
ing changed  his  mind  in  regard  to  some  of  the  property,  he  de- 
termined not  to  take  away  a  part  of  the  finished  carriages  he  had 
attached,  but,  in  lieu  thereof,  to  make  another  attachment  of  un- 
finished work,  which  he  did,  and  then  removed  the  unfinished 
work,  with  part  of  that  first  attached  ;  it  was  held,  that  the 
attachment  might  properly  be  considered  as  consisting  of  two 
distinct  acts.^ 

§  193.  An  attachment  levy  effected  by  unlawful  or  fraudulent 
means  is  illegal  and  void.  Such,  for  example,  is  the  case  of  enter- 
ing a  dwelling-house  against  the  owner's  will,  and  attaching  his 
property  theie  ;  to  which  more  particular  reference  will  presently 
be  made.*  Such,  too,  is  tlie  case  of  a  plaintiff  fraudulently  obtain- 
ing possession,  in  one  State,  of  the  property  of  his  debtor,  and  re- 

»  Whitney  v.  Butterfield,  13  California,  *  Bishop  v.  Warner,  19  Conn.  460. 

335.  4  Post,  §  200. 

■^  Scheib  v.  Baldwin,  22  Howard  Pract. 
278. 

[155] 


§  193   EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CHAP.  VII. 

moving  it  clandestinely  into  another  State,  and  there  attaching 
it.^  So,  likewise,  Avhere  the  plaintiff  decoyed  a  slave  from  one 
State  into  another,  for  the  purpose  of  attaching  him  for  the  debt 
of  his  owner.^  So,  where  the  officer  watched  the  defendant  at 
work  in  his  field,  where  he  might  have  served  the  writ  upon  him, 
bnt  did  not,  and  waited  till  the  plaintiff's  agent  enticed  the  de- 
fendant ont  of  the  State,  and  then  attached  the  defei]dant's  real 
estate,  "for  want  of  liis  body,  goods,  and  chattels."^  So,  where 
a  suit  by  attachment  was  brought  in  the  United  States  Circuit 
Court  for  Louisiana,  against  one  alleged  to  be  a  citizen  of  that 
State,  and  property  was  levied  on  in  the  interior  of  the  State  and 
brought  to  New  Orleans  ;  and  the  plaintiff  then  dismissed  that 
suit,  and  brought  another  in  the  State  court,  on  the  ground  that 
the  defendant  was  a  non-resident  of  that  State,  and  levied  the 
attachment  on  the  same  property.*  So,  where  a  sheriff,  in  a 
county  where  he  was  not  an  officer,  took  property,  under  pre- 
tence of  having  a  writ,  and  carried  it  to  another  county,  in  order 
to  bring  it  within  the  reach  of  legal  process.^  So  where,  on  the 
suggestion  of  the  counsel  for  the  attachment  plaintiff,  a  trunk 
was  produced  and  opened,  under  cover  and  pretence  of  a  criminal 
examination  then  progressing,  but  really  for  the  purpose  of  levy- 
ing an  attachment  upon  money  contained  in  it.*^  So,  where  a 
creditor  and  his  debtor  lived  in  the  State  of  New  York,  where 
the  latter  owned  a  team,  which,  by  the  law  of  that  State,  was  not 
attachable  ;  and  the  creditor,  for  the  purpose  of  enabling  himself 
to  attach  it  in  Massachusetts,  caused  false  representations  to  be 
made  to  the  debtor,  which  induced  him  to  take  the  team  into  that 
State,  where  it  was  attached  ;  it  was  held,  that  the  attachment 
was  void,  and  that  both  the  creditor  and  the  officer  who  made 
the  attachment  were  liable  as  trespassers,  though  the  latter 
did  not  know  of  the  fraud,  and  simply  obeyed  the  terms  of  his 
precept." 

It  was  attempted,  in  Massachusetts,  to  apply  the  principle  of 
these  decisions  to  the  case  of  an"  officer  who  had  levied  an  attacli- 


1  Powell  V.  McKee,  4  Louisiana  An-  ^  Nason  v.  Esten,  2  Rhode  Island,  337 ; 
nual,  108;  Paradise  v.  Farmers  and  Mer-  Metcalf  v.  Clark,  41  Barbour,  45. 
chants'  Bank,  5  Ibid.  710;    Wingate   v.  *  Gilbert   t'.   HoUinger,  14  Louisiana 
Wheat,  6  Ibid.  238;  Myers  v.  Myers,  8  Annual,  441. 

Ibid.  3(59.  ^  Pomroy  v.  Parmlee,  9  Iowa,  140. 

2  Timmons  v.  Garrison,  4  Humphreys,  ^  Pon)roy  v.  Parmlee,  9  Iowa,  140. 
148.  "^  Deyo  v.  Jennison,  10  Allen,  410. 

[156] 


CHAP.  VII.]      EXECUTION  AND  EETURN  OF  ATTACHMENT.         §  194 

ment  against  A.  on  property  which  he  immediately  afterwards 
found  not  to  be  A.'s,  but  B.'s.  Upon  this  appearing,  the  writ 
was  amended  by  inserting  the  name  of  B.,  and  the  officer  then, 
stating  that  he  gave  up  his  former  levy,  again  attached  the  goods 
as  the  property  of  B.  It  was  contended  that  he  was  a  trespasser 
in  the  second  levy,  because  he  was  so  in  the  first,  and  that  the 
first  continued  until  the  second  was  made ;  but  the  court  held, 
that  as  the  first  levy  was  not  made  for  the  purpose  of  seizing  the 
property  under  the  second  levy,  and  the  latter  was  not  effected 
by  means  of  the  former,  he  could  not  be  charged  as  a  trespasser 
in  making  the  second  levy.i  In  any  such  case,  whether  the 
officer  acted  with  such  a  purpose,  is  to  be  determined  from  all 
the  facts,  and  the  presumption  is  in  his  favor.^ 

§  194.  In  executing  the  writ,  the  officer  should  act  in  confor- 
mity to  the  law  under  which  he  proceeds ;  for,  if  the  service  be 
illegal,  no  lien  is  created  on  the  property .^  He  must  also  perform 
his  duty  in  such  a  manner  as  to  do  no  wrong  to  the  defendant. 
On  such  occasions  he  must  be  allowed  the  exercise  of  some  dis- 
cretion, and  is  not  to  be  made  liable  for  every  trivial  mistake  of 
judgment  he  may  make  in  doubtful  cases.  But  the  discretion 
allowed  him  must  be  a  sound  discretion,  exercised  with  perfect 
good  faith,  and  with  an  intent  to  subserve  the  interests  of  both 
the  debtor  and  the  creditor.*  For,  when  an  officer  wholly  departs 
from  the  course  pointed  out  to  him  by  the  law,  he  may  be  con- 
sidered as  intending  from  the  beginning  to  do  so,  and  as  making 
use  of  the  process  for  a  mere  pretence  and  cover;  and,  therefore, 
he  is  liable  in  the  same  manner,  and  for  the  same  damages,  as  he 
would  have  been  if  he  had  done  the  same  acts  without  the  legal 
warrant  he  abused  ;  he  will  be  considered  a  trespasser  ah  initio. 
In  other  words,  he  who  at  first  acts  with  propriety  under  an 
authority  or  license  given  by  law,  and  afterwards  abuses  it,  shall 

1  Gile  V.  Devens,  11  Gushing,  59.  of  duty,  or  such  an  improper  and  illegal 

2  Closson  V.  Morrison,  47  New  Hamp.  exercise  of  the  authority  to  the  prejudice 
482.  of  another,  —  such  an  active  and  wilful 

3  Gardner  v.  Hust,  2  llichardson,  601.      wrong  perpetrated,  —  as  will  warrant  the 
*  Barrett  v.  White,  3  New  Ilanip.  210.     conclusion  that  its  perpetrator  intended 

In  Taylor  v.  .Jones,  42  New   Hamp.  25,  from   the  first  to  do  wrong,  and  to  use 

the  court  said:  "Such  an  error  or  mis-  his   legal   authority   as   a   cover  for   his 

take  as  a  person  of  ordinary  care  and  illegal  conduct.     Where  the  acts  proved 

common  intelligence  might  commit,  will  warrant  no  such  conclusion,  the  person 

not  amount  to  an  ahuse  ;  but  there  must  charged  with  them  is  not  a  trespasser." 


be  a  complete  departure  from  the  line 


[157] 


§  195        EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII.' 

be  considered  a  trespasser  from  the  beginning.^  The  reason  of 
this  rule  is,  that  it  Av^ould  be  contrary  to  sound  public  policy  to 
permit  a  man  to  justify  himself  at  all  under  a  license  or  authority, 
allowed  him  by  law,  after  he  has  abused  the  license  or  authority, 
and  used  it  for  improper  purposes.  The  presumption  of  law  is, 
that  he  who  thus  abuses  such  an  authority,  assumed  the  exercise 
of  it,  in  the  first  place,  for  the  purpose  of  abusing  it.  The  abuse 
is,  therefore,  very  justly  held  to  be  a  forfeiture  of  all  the  protec- 
tion which  the  law  would  otherwise  give.  Therefore,  where  an 
officer  attached  certain  hay  and  grain  in  a  barn,  and,  without  any 
necessity,  removed  the  same  from  the  barn  at  an  unfit  and  un- 
reasonable time,  when  it  must  inevitably  be  exposed  to  great  and 
unnecessary  waste  and  destruction,  it  was  held,  on  the  principles 
above  stated,  to  be  such  an  abuse  as  to  render  the  officer  a  tres- 
passer ab  initio? 

§  194  a.  An  officer  executing  laAvful  process  in  a  lawful  manner 
can  never  be  a  trespasser ;  even  though  he  knew  that  the  purpose 
of  the  plaintiff  was,  through  the  instrumentality  of  the  attach- 
ment, to  restore  the  property  into  the  possession  of  other  parties, 
from  whom  it  was  withheld  by  the  defendant.^  But  if  he  act 
under  unlawful  process,  or  execute  lawful  process  in  an  unlawful 
manner,  he  is  a  trespasser.  And  whenever  he  does  such  acts  as 
authorize  his  being  considered  in  law  a  trespasser  ab  initio,  all 
acts  done  by  him  in  the  particular  case  are  unlawful,  and  he  may 
be  held  responsible  therefor,  just  as  if  he  had  been  devoid  of  any 
authority,  seeming  or  real.  If  he  has  attached  property,  he  can- 
not hold  it  if  the  defendant  chooses  to  reclaim  it ;  or,  if  he  hold 
it,  is  liable  to  the  defendant  for  its  value.^  But  if  the  defendant 
receive  back  the  property,  or  it  was  legally  disposed  of  for  his 
benefit,  such  fact  would,  in  an  action  by  him  against  the  officer 
for  the  trespass,  go  in  mitigation  of  damages.^ 

§  195.  The  officer  should  be  careful  not  to  levy  the  writ  on 
any  property  not  liable  to  attachment ;  for  if  he  do,  he  will  be 
considered  a  trespasser.^     But  if,  in  seizing  an  article,  —  as,  for 


1  Barrett  v.  White,  3  New  Hamp.  210. 

-  Barrett  v.  White,  3  New  Hamp.  210; 
Peeler  v.  Stebbins,  2G  Vermont,  644. 

3  Wakefield  v.  Pairman,  41  Vermont, 
339. 

[158] 


*  Collins  V.  Perkins,  31  Vermont,  624. 

*  Yale  V.  Saunders,  1(5  Vermont,  243  ; 
Stewart  v.  Martin,  Ibid.  397. 

<>  Poss    V.    Stewart,   14    Maine,    312; 
Bean  v.  Hubbard,  4  Gushing,  85 ;  Rich- 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  196 

instance,  a  trunk,  —  he  is  under  a  necessity  of  taking  into  Ms 
possession  with  it  articles  exempt  from  attachment,  and  if  he  in- 
termeddles with  them  to  no  greater  extent  than  to  remove  them 
from  the  trunk,  and  deliver  them  to  the  owner,  or,  upon  the 
owner's  declining  to  receive  them  when  offered,  then  to  keep 
them  safely  until  called  for,  he  commits  no  wrong.^  And  if  the 
defendant  assent  to  the  attachment  at  the  time,  it  will  be  vaHd  ; 
and  a  subsequent  assent  will  make  it  good  ah  initio.'^  If  the 
property  is  a  part  of  a  larger  quantity  than  the  law  exempts,  the 
defendant  must  set  apart  such  portion  as  is  exempted,  and  claim 
it  as  such,  or  he  will  be  held  to  have  consented  to  its  being  at- 
tached.'^ 

§  196.  If  an  officer  attach  personalty  not  the  property  of  the 
defendant,  he  is,  of  course,  a  trespasser  on  the  rights  of  the 
owner,  who  may  maintain  either  trover,  trespass,  or  replevin 
ao-ainst  him.  Such  an  attachment  is  a  tortious  act,  which  is  it- 
self  a  conversion  ;  and  if  trover  be  brought,  no  demand  on  the 
officer  need  be  proved.*  And  it  is  such  an  official  misconduct  as 
his  sureties  in  his  official  bond  are  liable  for.^  If  he  acts  by 
the  direction  of  the  plaintiff,*^  or  of  the  attorney  in  the  suit,"  the 
plaintiff  is  regarded  as  equally  guilty  and  equally  liable  for  the 
trespass ;  but  not  if  he  take  no  part  in  the  levy,^  unless  he  after- 
ward ratify  it ;  and  he  will  be  held  to  have  ratified  it,  when  he 
defends  against  a  claim  of  property  filed  by  the  owner  in  the  at- 
tachment suit.^  And  against  either  officer  or  plaintiff,  where 
both  engage  in  the  act,  suit  may  be  brought  at  once,  witliout  any 
demand  or  notice, ^^  and  without  tlie  owner  being  under  obligation 

ards  V.  Daggett,  4  Mass.  534 ;  Gibson  v.  5  People    v.    Schuyler,    4    Comstofk, 

Jenney,  15  Ibid.  205;  Kiffi;.  Old  Colony,  173;  Archer  v.  Noble,  3  Maine,  418; 
&c.,  R.  R.  Co.,  117  Ibid.  591  ;  Howard  v.  Harris  v.  Hanson,  11  Ibid.  241 ;  Common- 
Williams,  2  Pick.  80;  Lynd  v.  Picket,  7  wealth  v.  Stockton,  5  Monroe,  192;  State 
Minnesota,  184;  Cooper  v.  Newman,  45  v.  Moore,  19  Missouri,  369;  State  r.  Fitz- 
New  Hamp.  339.  patrick,  G4  Ibid.  185  ;  Van  Pelt  v.  Littler, 

1  Towns  V.  Pratt,  33  New  Hamp.  345.       14  California,  194  ;  Sangster  v.  Common- 

2  Hewes  v.  Parknian,  20  Pick.  90.  wealth,  17  Grattan,  124. 

«  Marsh  v.  Backus,  16  Barbour,  483. 
"  Oestrich    v.    Greenbaum,    16    New 

York  Supreme  Ct.  242. 

^  JJutler  V.  Borders,  6  Blackford,  160. 


'  Nasii  V.  Farrington,  4  Allen,  157 
Clapp  V.  Thomas,  5  Ibid.  158  ;  Smith  v 
Chadwick,  51  Maine,  515. 

4  Woodbury   v.   Long,   8   Pick.    543 


Ford  V.  Dyer,  26  Mississippi,  243  ;  Meade  ^  I'errin  v.  Claflin,  11  Missouri,  13 


V.  Smith,  16  Conn.  346;  Caldwell  v 
Arnolil,  8  Minnesota,  265 ;  Sangster  v 
Commonwealth,  17  Grattan,  124. 


10  Tufts  V.  McClintock,  28  Maine,  424; 
Richardson  v.  Hall,  21  Maryland,  399. 

[159] 


§  197       EXECUTION  AND  EETURN  OF  ATTACHMENT.      [CHAP.  VII. 

to  take  any  steps  in  the  suit  in  wliich  the  seizure  is  made  ;  ^  hut 
if  he  take  such  steps,  and  chiim  the  property  in  the  attachment 
cause,  and  recover  judgment  for  its  restitution,  his  right  to 
recover  damages  for  the  illegal  taking  and  detention  will  not  be 
thereby  impaired.^  If,  however,  after  thus  claiming  the  property, 
he  agree  with  tlie  other  parties  to  the  suit,  that  the  officer  may 
sell  it,  and  hold  the  proceeds  subject  to  the  final  decision  of  the 
controversy,  it  is  considered,  in  Louisiana,  to  amount  to  a  waiver 
of  his  claim  against  the  officer  for  damages.^ 

§  196  a.  That  the  defendant  was  not  the  owner  of  the  property 
attached,  is  not  good  matter  for  a  plea  by  the  defendant  in 
abatement  of  the  suit.* 

§  196  5.  If  several  attachments  be  levied  at  different  times 
on  the  same  property,  not  being  that  of  the  defendant,  it  is  held, 
in  Maryland,  that  though  the  owner  of  the  property  may  sue 
the  officer  in  trespass  for  the  original  taking  under  the  writs  first 
levied,  he  cannot  maintain  the  action  for  the  subsequent  levy 
under  the  last  attachment,  for  then  the  property  was  already  in 
custodia  legis.^ 

§  196  c.  In  any  case  of  an  attachment  of  property  not  belonging 
to  the  defendant,  if  the  property,  being  perishable,  be  sold  by 
the  officer,  he  cannot,  when  sued  b}'  its  owner,  charge  the  costs 
and  expenses  of  the  attachment  and  sale,  against  the  fund  arising 
from  the  sale.^ 

§  197.  The  necessity  for  the  officer's  making  due  inquiry  con- 
cerning the  property  he  attaches  is  so  highly  regarded,  that  he 
wall  be  treated  as  a  trespasser  for  seizing  property  not  belonging 
to  the  defendant,  even  though  the  owner  give  him  no  special  no- 
tice that  the  property  is  his,  and  make  no  demand  for  it.''  And 
the  remedy  of  the  owner  against  the  officer  is  not  impaired  by 
the  owner  becoming  the  receiptor  to  the  officer  for  the  property ; 

1  Shuff  y.  Morgan,  9  Martin,  592.  *  Ginsberg  v.  Polil,  35  Maryland,  505. 

2  Trieber  v.  Blacber,  10  Maryland,  14.  ^  Haywood  v.  Hardie,  76  North  Caro- 
8  Judson   V.   Lewis,   7   Louisiana  An-     Una,  384. 

nual,  55.  ''  Stickney  v.  Davis,  16  Pick.  19. 

••  King   V.  Bucks,    11   Alabama,   217; 
Sims  V.  Jacobson,  51  Ibid.  186. 
[160] 


CHAP.  VTI.]     EXECUTION  AND  RETURN  OF  ATTACHMENT.  §  199 

for  in  such  case  the  owner  is  bound  by  the  terras  of  the  receipt 
to  retain  the  property  and  have  it  ready  for  delivery  on  demand  ; 
and  in  an  action  on  the  receipt  would  be  estopped  from  setting 
up  property  in  himself.^ 

§  198.  What  will  amount  to  an  attachment,  for  which  trespass 
may  be  maintained,  may  admit  of  question.  In  Pennsylvania, 
the  return  by  an  officer  that  he  had  attached  goods,  which  appear 
not  to  have  been  the  defendant's,  subjects  the  officer  to  an  action 
of  trespass,  where  the  property  was  bound  by  the  levy,  and  was 
in  the  officer's  power,  though  there  was  no  manual  handling  or 
taking  them  into  possession.^  The  same  doctrine  has  been  recog- 
nized in  Massachusetts,^  and  New  Hampshire.*  But  where  an 
officer  had  a  writ,  and  found  the  defendant  in  possession  of 
property,  and  informed  him  that  he  was  directed  to  make  an  at- 
tachment ;  and  the  defendant  informed  the  officer  that  the  prop- 
erty was  not  his  ;  and  the  officer  did  not  take  it  or  intei'fere  with 
it ;  and  the  defendant  obtained  a  receiptor  for  it ;  and  it  did  not 
appear  that  any  return  of  an  attachment  was  made;  it  was  held, 
not  to  amount  to  a  conversion  by  the  officer.^  So,  where  an 
officer  attached  a  quantity  of  plate-glass,  and  did  not  remove  it, 
but,  under  a  statutory  provision  authorizing  such  course,  de- 
posited a  copy  of  the  writ  and  of  his  attachment  in  the  town- 
clerk's  office ;  and  thereafter  another  officer,  in  like  manner, 
made  a  second  attachment  of  the  property,  but  did  no  act  to  dis- 
turb the  possession  of  the  officer  who  made  the  first  levy ;  it  was 
held,  that  the  first  officer  could  not  maintain  an  action  against 
the  second  for  the  conversion  of  the  property.^ 

§  199.  The  doctrines  of  the  common  law  in  relation  to  confusion 
of  goods  have  been  partially  brought  into  view  and  applied,  in 
connection  with'  the  execution  of  attachments.  What  will  con- 
stitute a  confusion  of  goods,  has  been  the  subject  of  much  dis- 
cussion. Intermixture  is  not  necessarily  a  convertible  term  with 
confusion ;   for  there   may  be  intermixture    without   confusion, 

1  Robinson  v.  Mansfield,  13  Pick.  139 ;  *  Morse  v.  Kurd,  17  New  Hamp.  246. 

Jolins  V.  Church,  1"2  Ibid.  557.  ^  Rand  v.  Sargent,  28  Maine,  320. 

'^  Paxton  V.  Steckel,  2  Penn.  State,  03.  ^  Polley    v.   Leno.x    Iron    Works,    15 

'  Gibbs  w.  Ciiase,  10  Mass.  125  ;  Miller  Gray,    513.     See    Bailey    v.   Adams,    14 

V.  Baker,   1   Metcalf,  27  ;  St.   George  v.  Wendell,  201. 

O'Conneli,  110  Mass.  475. 

11  [IGl] 


§  199        EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

though  there  can  be  no  confusion  without  intermixture.  Con- 
fusion takes  phice  when  there  has  been  such  an  intermixture  of 
similar  articles  owned  by  different  persons,  as  that  the  property 
of  each  can  no  longer  be  distinguished.^  Confusion  may  be 
predicated  of  such  things  as  money,  corn,  or  hay,  which  have 
nothing  in  their  appearance  by  which  one  quantity  may  be  dis- 
tinguished from  another.  And  so  in  the  case  of  logs,  of  the 
same  description  of  wood  and  similarly  cut.^  But  where  the  ar- 
ticles are  readily  distinguishable  from  each  other,  there  is  no 
confusion ;  as  in  the  case  of  cattle,^  or  of  crockery  ware  and 
china  placed  on  the  same  shelf.* 

Wiien  an  officer  proceeds  to  execute  an  attachment,  he  is  au- 
thorized to  seize  any  personalty  found  in  the  defendant's  pos- 
session, if  he  have  no  reason  to  suppose  it  to  be  the  property  of 
another.  If  it  happen  that  the  goods  of  a  stranger  are  inter- 
mixed with  those  of  the  defendant,  even  without  the  owner's 
knowledge,  the  owner  can  maintain  no  action  against  the  officer 
for  taking  them,  until  he  have  notified  the  officer,  and  demanded 
and  identified  his  goods,  and  the  officer  shall  have  delayed  or 
refused  to  deliver  them.^  In  such  case  the  officer  cannot  be 
treated  as  a  trespasser  for  taking  the  goods  ;  but  if  he  sell  the 
whole,  after  notice  of  the  owner's  claim,  it  will  be  a  conversion, 
for  which  trover  may  be  maintained.^ 

If  a  party  wilfully  intermingle  his  goods  with  those  of  another, 
so  that  they  cannot  be  distinguished,  the  other  party  is,  by  the 

1  Hesseltine  v.  Stockwell,  30   Maine,  undistinguishable,  because  a  new  ingre- 
237:  Tufts  v.  McCliutock,  28  Ibid.  42-t.  dieiit   is   formed,  not  capable   of  a  just 
In  Kobinson  v.  Holt,  89  New  Hamp.  557,  appreciation  and   division   according   to 
tlie   court   said:   "The   doctrine   of   tlie  tlie  original  rights  of  each,  or  if  the  arti- 
confusion   of  goods  has  been  often  dis-  cles   mixed   are   of    different   values    or 
cussed,  and  may  be  considered  as  clearly  quantities,    and   the    original    values   or 
and  distinctly  settled.     If  the   goods  of  quantities    cannot    be     determined,    the 
several  intermingled  can   be   easily  dis-  party   who  occasions,  or  through   whose 
tinguished  and  separated,   no  change  of  fault  or  neglect  occurs  the  wrongful  mix- 
property  takes  place,  and  each  party  may  ture,  must  bear  the  whole  loss." 
lay  claim  to  his  own.     If  the  goods  are  ^  Loomis  v.  Green,  7  Maine,  386  ;  Hes- 
of  the  same  nature  and  value,  although  seltine  v.  btockwell,  30  Ibid.  237. 
not  capable  of  an  actual  separation  by  *  llolbrook  v.  Hyde,  1  Vermont,  286. 
identifying  each  particular,  if  the  portion          ^  Treat  v.  Barber,  7  Conn.  274. 
of  each  owner  is  known,  and  a  division          ^  Tufts  v.  McClintock,  28  Maine,  424; 
can  be  made  of  equal  proportionate  value,  Wilson  v.  Lane,  33  New  Hamp.  466. 
as  in  the  case  of  a  mixture  of  corn,  cotiee,          ^  Lewis  v.  Whittemore,  5  New  Hamp. 
tea  wine,  or  other  article  of  the  same  864;   Albee   v.    Webster,    16    Ibid.   362; 
kind  and  quality,  then  each  may  claim  Shumway  v.  Ilutter,  8  Tick.  443. 
his  aliquot  part;   but  if  the  mixture  is 
[162] 


CHAP.  VII.]      EXECUTIOX  AND  RETURN  OF  ATTACHMENT.         §  199 

principles  of  the  common  law,  entitled  to  the  entire  property, 
without  lial)ility  to  account  for  any  part  of  it.^  In  that  case,  an 
officer  cannot  attach  any  of  the  goods  for  a  debt  of  him  who 
caused  the  intermixture  ;  ^  but  may  attach  the  whole  for  the 
debt  of  the  innocent  part}' ;  and  if  the  former  would  reclain'i  his 
property  b}'  law,  the  burden  of  proof  is  on  himself  to  distinguish 
his  goods  from  those  of  the  defendant.^  If  he  know  of  the  at- 
tachment, and  fail  to  notify  the  officer  of  his  claim,  he  cannot 
subject  the  officer  to  any  accountability  for  the  seizure.* 

If  an  officer  be  notified,  or  have  reason  to  believe,  that  goods 
of  a  stranger  are  intermingled  with  those  of  a  defendant,  it  is 
his  duty  to  make  proper  inquiry,  with  a  view  to  avoid  seizing 
property  not  the  defendant's.  He  may  require  the  claimant  to 
point  out  his  property,  and  if,  being  able  to  do  so,  he  refuse,  the 
officer  may  seize  the  whole,  without  liability  to  be  proceeded 
against  for  a  tort.^  When,  however,  an  officer  having  an  attach- 
ment against  A.,  undertakes  to  lev}^  it  on  pi-operty  in  the  hands 
of  B.,  upon  the  assumption  that  B.'s  title  is  fraudulent,  and  that 
the  property  is  really  A.'s ;  and  the  goods  he  seeks  to  reach  are 
intermingled  with  others  of  a  similar  kind,  which,  without  dis- 
pute, belong  to  B.  ;  he  cannot  demand  of  B.  to  select  what  is 
undisputedly  his  ;  and  a  refusal  b}'  B.  to  make  such  selection  will 
not  justify  an  attachment  of  the  whole ;  unless  B.  made  the  in- 
termixture fraudulently,  and  with  the  intention  of  frustrating 
the  attachment.^ 

^  Ryder  v.    Hathaway,   2   Pick.  298 ;  and   value.     It   is   only   in    those    cases 

Willard  v.  Rice,  11  Metcalf,  493 ;  2  Kent's  where  the  intermixture  has  been  caused 

Com.    364;    Story   on   Bailments,   §   40;  by  the  wilful  or  unlawful  act  of  one  of 

Beach;;.  Schmultz,  20  Illinois,  185  ;  Robin-  the  proprietors,  and  the  several  parcels 

son  V.  Holt,  3!)  New  Hamp.  557  ;  Taylor  have    thereby   become   so   combined   or 

V.  Jones,  42  Ibid.  25.     In  Smitli  v.  San-  minjiied  together  that  they  can  no  longer 

born,  6  Gray,   134,  the  court  said :  "  A  be  identified,  that  his  interest  in  them  is 

change  of  ownership  does  not  necessarily  lost." 

ensue   from   the    mere    intermixture    of  -  Beach  v.  Schmultz,  20  Illinois,  185. 
property  belonging  to  different  individu-          ^  Loomis  v.  Green,  7  Maine,  386  ;  Wil- 
als.     Tlieir  rights  as  owners  may  remain  son  v.  Lane,  33  New  Hamp.  466;  Robin- 
unaflTected  after  it  has  taken  place.    Each  son  v.  Holt,  30  Ibid.  557  ;  Weil  v.  Silver- 
one  of  them  is  still  at  liberty  to  reclaim  stone,  6  Bush,  608. 

what  had  before  belonged   to  him,  if  it  *  Bond  r.  Ward,  7  Mass.  123 ;  Lewis 

can  be  distinguished  and  separated  from  v.  Wiiitteniore,  5  New  Hamp.  364  ;  Wil- 

the  rest;  or  may  insist  on  receiving  his  son  v.  Lane,  33  Ibid.  466. 
just   projjortion  of  the  whole,  when  the  '"  Sawj-er    v.    Merrill,    6    Pick.    476; 

several    parcels    of    which    it     consists,  Albce  v.  Webster,  16  New  Hamp.  362. 
though  they  have  become  indistinguish-  ^  Treat  v.  Barber,  7  Conn.  274. 

able,  are  of  substantially  the  same  quality 

[163] 


§  200         EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VH. 

To  justify  an  attachment  of  the  goods  of  a  stranger,  on  the 
ground  of  intermixture,  it  is  incumbent  on  the  officer  to  show 
that  the  goods  were  of  such  character,  or,  at  least,  that  tliere 
was  such  an  intermixture,  that  tliey  could  not,  upon  due  inquiry, 
be  distinguished  from  those  of  the  defendant.^ 

The  necessity  for  inquiry  in  such  cases  is,  with  great  propriety, 
ver}'-  strongly  insisted  on  b}-  the  courts,  particularly  in  cases 
where  the  officer  has  a  reasonable  ground  to  induce  a  belief,  that, 
in  executing  the  writ,  he  may  seize  the  property  of  a  stranger, 
who  is  not  present  to  assert  his  rights,  and  does  not  know  of  the 
seizure.  Therefore,  where  an  officer,  under  such  circumstances, 
made  no  inquiry  at  all,  and  there  was  strong  internal  evidence, 
in  the  manner  of  his  advertising  the  property  for  sale,  that  he 
must  have  been  apprised  that  there  was  a  defect  in  the  defend- 
ant's title,  it  was  held,  that  the  owner  might  maintain  trespass 
against  him  for  taking  the  property .^ 

When  a  third  party  claims  that  his  goods  are  intermingled, 
and  have  been  attached,  with  those  of  the  defendant,  and  ex- 
hibits to  the  officer  a  bill  of  sale  of  articles,  and  there  are  other 
articles  of  a  like  kind  attached,  so  as  that  those  of  the  claimant 
are  undistinguishable,  the  officer  will  be  justified  in  selecting  and 
giving  up  the  least  valuable  articles  corresponding  with  the  bill 
of  sale.^ 

§  200.  An  officer  having  an  attachment  may  enter  the  store  of 
a  third  person  where  goods  of  the  defendant  are,  for  the  purpose 
of  executing  the  writ,  and  may  even  break  open  the  door,  if  re- 
fused admittance  on  request,  and  may  remain  there  long  enough 
to  seize,  secure,  and  inventory  the  goods  ;  and  if  the  owner  of 
the  store  resist  or  oppose  him,  he  may  use  whatever  force  is  nec- 
essary to  enable  him  to  perform  his  duty;*  but  in  such  case,  he 
is  not  entitled,  without  the  consent  of  the  proprietor,  to  make 
use  of  the  tenement  to  keep  the  attached  property  in ;  ^  but 
must  remove  it  therefrom  as  soon  as  it  can  reasonably  be  done, 

1  Walcott    V.   Keitli,   2    Foster,   196  ;  »  Shumway  v.  Rutter,  8  Pick.  443. 

Wilson  V.   Lane,   3o    New    Hamp.   466;  *  Fullerton  v.  Mack,  2  Aikens,  415; 

Morrill  v.  Keyes,  14  Allen,  222.  Piatt  v.  Brown,  16  Pick.  553;  Burton  v. 

'  yibley   v.   Brown,    15    Maine,   185;  Wilkinson,   18  Vermont,   186;    Perry   v. 

Smith  V.  Sanborn,  6  Gray,  134;  Carlton  Carr,  42  Ibid.  50;  Messner  v.  Lewis,  20 

V.  Davis,  8  Allen,  94;  Morrill  r.  Keyes,  Texas,  221. 

14   Ibid.  222  ;  Gilman   v.   Hill,   36    New  &  Rowley  v.  Rice,  11  Metcalf,  337. 

Hamp.  311. 

[164] 


CHAP.  Vn.]     EXECUTION  AND  RETURN  OF  ATTACHMENT.  §  201 

or  he  will  be  held  a  trespasser.^  And  where  the  defendant  is  the 
proprietor  of  the  store,  and  offers  no  resistance  to  the  levy,  the 
officer  has  no  right  to  eject  him  from  the  store,  or  to  retain  pos- 
session thereof  longer  than  is  necessary  to  make  a  proper  attach- 
ment of  the  goods.^  In  every  such  case  a  demand  for  admittance 
must  precede  any  resort  to  force.  If  the  demand  be  made  upon 
the  person  having  the  ke}^  of  the  building,  it  is  all  that  is  neces- 
sary ;  and  the  officer  is  not  bound  to  inquire  how,  or  in  what  way, 
such  person  became  possessed  of  the  key.^  But  if,  in  such  case, 
the  officer  take  entire  possession  of  the  building,  excluding  the 
owner,  he  may,  as  respects  the  owner,  be  regarded  as  a  trespasser 
ah  initio^  When,  however,  the  matter  of  forcing  an  entrance  into 
a  dwelling-house,  for  the  purpose  of  attaching  property  of  the 
owner,  is  presented,  the  law  takes  different  ground,  and  not  only 
declares  such  forcing  an  unlawful  act,  but  that  the  attachment 
made  by  means  of  it  is  unlawful  and  invalid.^  And  this  was  held 
to  apply  to  the  case  of  a  part}^  living  in  a  tenement-house,  which 
was  let  in  distinct  portions  to  several  tenants,  who  used  in  common 
the  entry  and  stairway.  It  was  decided  that,  in  such  case,  an 
officer  who  has  entered  through  the  outer  door  into  the  entry,  has 
no  right  to  break  open  the  door  of  one  of  the  rooms  of  a  tenant, 
in  order  to  attach  the  property  of  a  third  person  therein.^  But 
in  Vermont,  if  the  property  of  a  stranger  be  secreted  in  a  dwell- 
ing-house, it  is  held,  that  the  officer  may  proceed  as  in  the  case 
of  a  store.'' 

§  201.  In  Maine,  it  was  attempted  to  establish  the  doctrine 
that  an  officer  who  levies  an  attachment  on  property  of  greater 
amount  in  value  than  the  debt  to  be  secured,  transcends  his  au- 
thority, and  becomes  a  trespasser  ab  initio^  and  therefore  that  the 
attachment  is  invalid.  But  the  court  held,  that  it  did  not  neces- 
sarily follow  that  the  officer  acted  oppressively  or  illegally,  be- 
cause he  attached  more  property  than  was  necessar}'-  to  satisf}^ 
the  attachment  ;    that  if    he  acted    oppressively,   he  might   be 

1  Malcom  v.  Spoor,  12  Metcalf,  270;  *  Fullerton  v.  Mack,  2  Aikens,  415; 

Williams  r.  Powell,  101  Mass.  467  ;  Davis     Newton  v.  Adams,  4  Vermont,  437. 
V.  Stone,  120  Ibid.  228.  &  Ili^iey  v.  Nichols,  12  Pick.  270;  Peo- 

^  Perry  u.  Carr,  42  Vermont,  50.  pie  v.  Hubbard,  24  Wendell,  oti9. 

"  Burton  r.   Wilkinson,   18  Vermont,  *"  Swain  v.  Mizner,  8  Gray,  182. 

186.  ■•  Burton  v.  Wilkinson,   18  Vermont, 

186. 

[165] 


§203         EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

liable  to  an  action  by  the  part}'  injured  ;  but  that  third  persons 
could  not  interpose  and  claim  to  set  aside  the  attachment  for 
that  cause. ^ 

§  202.  An  officer  should  not  do  any  act,  at  the  time  of  making 
an  attachment,  which  could  be  construed  into  an  aljandonment 
of  the  attachment,  or  the  attachment  will  be  a  nullity.  Thus, 
where  an  officer  having  an  attachment,  got  into  a  Avagon  in  which 
the  defendant  was  riding,  and  told  the  defendant  that  he  attached 
the  horse  harnessed  to  the  wagon,  and  then  rode  down  street 
with  the  defendant,  without  exercising  any  other  act  of  posses- 
sion, and  left  the  horse  with  the  defendant,  npon  his  promising 
to  get  a  receiptor  for  it ;  it  was  held,  that,  as  the  horse  had  not 
been  under  the  officer's  control  for  a  moment,  or,  if  it  could  be 
considered  that  he  had  had  an  instantaneous  possession,  it  was 
as  instantaneously  abandoned,  there  was  no  attachment.^ 

§  203.  A  question  here  arises  as  to  the  right  of  an  attaching 
officer  to  use  the  property  attached,  and  the  consequences  to  him 
of  such  use.  In  Vermont,  if  he  use  the  property  —  as,  for  in- 
stance, a  horse  —  sufficiently  to  pay  for  its  keeping,  he  cannot 
require  pay  for  such  keeping;^  and  the  court  there  seemed  to 
regard  such  use  as  perhaps  admissible  to  that  extent ;  but  asr»  an 
unsafe  and  pernicious  proceeding,  not  to  be  countenanced.* 
Aside  from  this  question,  however,  there  can  be  no  doubt  that  if 
the  officer,  or  his  bailee,  use  the  property,  so  that  its  value  is 
thereby  impaired,  he  becomes  by  such  use  a  trespasser  ah  initio.^ 
But  the  doctrine  does  not  appear  to  have  been  extended  to  any 
case,  except  where  there  was  a  clear,  substantial  violation  of  the 
owner's  rights,  and  of  such  a  character  as  to  show  a  wanton  dis- 
regard of  duty  on  the  part  of  the  officer,  or  his  bailee,  either 
where  the  property  was  injured,  or  had  been  used  by  an  officer 
for  his  own  benefit,  or  for  the  benefit  of  some  one  other  than  the 
attachment  debtor.  Therefore,  where  an  officer  attached  a  horse, 
wagon,  and  harness,  and  immediately  put  them  to  use  in  remov- 
ing other  personal  property  of  the  debtor,  attached  by  him  at  the 
same  time,  and  it  appeared  that  they  were  not  thereby   injured, 

1  Merrill  r.  Curtis,  18  Maine,  272.  ^  Lamb    v.    Day,    8   Vermont,    407; 

'^  French  r.  Stanley,  21  Maine,  512.  Brigt^s  ».   Gleason,  29  Ibid.  78 ;  Collins 

3  Dean  i'.  Bailej-,  12  Vermont,  142.  v.  Perkins,  31  Ibid.  624. 

*  Lamb  v.  Day,  8  Vermont,  407. 
[1G6] 


CHAP.  VII.]     EXECUTION  AND  RETURN  OF  ATTACHMENT. 


204 


it  was  held,  that  for  such  use  he  was  not  liable  as  a  trespasser 
ah  initio.  And  where  it  appeared  that  the  officer  was  seen  driv- 
ing the  horse  along  the  highway,  the  next  day  after  the  attach- 
ment, and  there  was  no  proof  of  the  purpose  of  such  driving,  it 
was  considered  that  it  should  not  be  presumed  to  have  been  for 
an  unlawful  purpose.^ 

§  204.  The  officer  having  duly  levied  the  attachment,  his  next 
duty  is  to  make  return  of  it ;  for  though  he  may  retain  the  prop- 
ert}-  till  the  return  day  of  the  writ,  without  maldng  his  return, 
yet  the  making  of  a  written  return  is  necessary  to  perfect  the 
attachment,  and  if  it  be  not  made  on  or  before  the  return  day, 
the  attachment  will  be  dissolved.^  If  the  return  do  not  on  its 
face  show  when  it  was  made,  the  legal  intendment,  in  the  absence 
of  proof  t6  the  contrary,  would  be  that  it  was  made  on  or  before 
that  day .3  The  return  can  be  made  only  by  the  officer  to  whom 
the  writ  was  directed.  A  return  made  by  another  officer  is  void.^ 
And  though  that  may  be  written  upon  the  process,  which,  if  signed 
by  the  officer,  would  be  a  return,  yet,  if  not  signed,  it  is  no  return, 
and  therefore  there  is  no  attachment.^  And  as  his  return  is  in 
general  conclusive  against  him,  and  cannot  be  disproved  b}'  parol 
evidence,^  it  is  important,  not  only  to  the  parties  interested,  but  to 


1  Paul  V.  Slason,  22  Vermont,  231. 

2  Wilder  V.  Holden,  24  Pick.  8;  Riiss 
V.  Butterfield,  6  Gushing,  242  ;  Williams 
V.  Babbitt,  14  Gray,  141 ;  Paine  r.  Farr, 
118  Mass.  74;  Tomiinson  v.  Stiles,  4 
Duteber,  201 ;  5  Ibid!  426.  In  Alabama, 
however,  in  the  case  of  an  ancillary  attach- 
ment,—  which  is  an  attachment  taken 
out  in  a  suit  previously  instituted  by 
summons,  —  it  was  held,  that  the  failure 
of  a  sheriff,  without  the  connivance  or 
consent  of  the  plaintiff,  to  return  sucli 
an  attaclimcnt  until  after  judgment,  did 
not  affect  the  ])laintifl''s  lien.  Reed  v. 
Perkins,  14  Alabama,  231.  And  in  South 
Carolina,  a  sheriff  who  had  neglecteil  to 
make  his  return  in  proper  time  was  al- 
lowed to  make  it  afterward  nunc  pro  tunc. 
Bancroft  v.  Sinclair,  12  Richardson,  617. 
And  in  California,  wiiere  a  mortgagee  of 
real  estate,  under  a  mortgage  executed 
after  the  levy  of  an  attachment,  sougiit 
to  enjoin  the  sale  of  the  property  be- 
cause the  sheriff  had  not  made  a  proper 
return  on  the  writ,  but  had,  as  required 


by  statute,  filed  in  the  Recorder's  office 
of  the  county  a  copy  of  the  writ  with  a 
description  of  the  property  attached  ;  it 
was  held,  that  the  lien  of  the  attachment 
was  not  devested  by  the  failure  of  the 
officer  to  make  a  proper  return  ;  that  the 
fact  of  <a  proper  levy  might  be  proved  by 
other  competent  evidence  ;  and  that  the 
filing  of  tlie  copy  of  the  writ,  with  a  de- 
scription of  the  property,  in  the  Re- 
corder's office,  was  sufficient  to  operate 
as  notice  to  third  parties  of  the  lien  of 
the  attachment.  Ritter  v.  Scannell,  11 
California,  238. 

3  Anderson  v.  Graff,  41  Maryland.  601. 

i  Olney  v.  Shepherd,  8  Blackford,  146. 

5  Clymore  v.  Williams,  77  Illinois,  618. 

6  Paxton  V.  Steckel,  2  Penn.  State, 
93;  French  v.  Stanley,  21  Maine,  512; 
Ilayncs  v.  Small,  22  Ibid.  14  ;  Denny  i;. 
Willard,  11  Pick.  51'J;  Brown  v.  Davis, 
y  New  Hamp  7() ;  Clarke  v  Gary,  11 
Alabama,  i)8 ;  Chadbourne  i'.  Sumner,  16 
New  Ilamp.  12'J. 

[167] 


§  205         EXECUTION  AND  RETURN  OF  ATTACHMENT.     [CHAP.  VII. 

himself,  that  it  shoiikl  be  made  with  great  care.  In  Maine,  the 
court  used  this  hmguage :  "  Officers  ought  to  know  what  they 
attacli,  and  to  be  hoklen  to  exactness  and  precision  in  making 
their  returns.  Neither  the  debtor  nor  the  creditor  wouhl  be  safe 
if  it  were  otherwise.  And  it  is  well  that  the  law  should  be  so 
promulgated  and  understood.  An  officer  in  such  cases  is  intrusted 
with  great  power.  He  may  seize  another  man's  property,  without 
the  presence  of  witnesses,  whether  it  be  goods  in  a  store,  or  else- 
where ;  and  safety  only  lies  in  holding  him  to  a  strict,  minute, 
and  particular  account.  To  hold  that  he  may,  indifferently, 
make  return  of  his  doings  at  random,  and  afterwards  be  permitted 
to  show  that  what  he  actuall}'  did  Avas  entirely  different,  would 
be  opening  a  door  to  infinite  laxity  and  fraud,  and  mischiefs  in- 
calculable." The  court,  acting  on  these  views,  held,  where  the 
officer  had  returned  an  attachment  of  175  yards  of  broadcloth, 
and  was  sued  for  not  having  the  cloth  forthcoming  on  execution, 
that  he  could  not  give  evidence  that  he  had  attached  all  the 
broadcloths  in  the  defendant's  possession ;  that  the  whole  of  the 
broadcloths  so  attached  amounted  to  no  more  than  thirty  yards ; 
and  that  by  mistake  he  over-estimated  the  number  of  yards  in 
the  lot.i 

§  205.  The  return  should  state  specifically  what  the  officer  has 
done ;  and,  where  the  manner  of  doing  it  Is  important,  it  should 
be  set  forth,  that  the  court  may  judge  whether  the  requirements 
of  the  law  have  been  complied  with.  It  does  not  answer  for  the 
officer,  in  such  case,  to  return  that  he  attached  ;  he  should  return 
his  doings,  and  leave  the  court  to  determine  whether  they  consti- 
tuted an  attachment.^  Neither  should  he  return  that  he  executed 
the  writ  as  the  law  directs  ;  for  tliat  is  but  his  opinion  of  his  own 
acts.^  But  where  the  officer  returned  that  he  had  "  levied  "  the 
writ  on  certain  personal  j)ropert3%  it  was  held,  that  the  term  could 
only  mean  a  legal  levy,  which  included  a  seizure  of  the  property.* 


1  Haynes  v.  Small,  22  Maine,  14. 
See  Clarke  i'.  Gary,  11  Alabama,  98. 

2  Gibson  V.  Wilson,  5  Arkansas,  422 ; 
Desha  v.  Baker,  3  Ibid.  509 ;  Jeffries  v. 
Harvie,  38  Mississippi,  97  ;  Crizer  v.  Gor- 
ren,  41  Ibid.  503 ;  Ezelle  v.  Simpson,  42 
Ibid.  515 ;  Rankin  v.  Duianey,  43  Ibid. 
197 ;   Moore  v.  Coates,   Ibid.  225.    Sed 

[168] 


contra,  Boyd  v.  King,  36  New  Jersey  Law, 
134. 

3  Stockton  V.  Downey,  6  Louisiana 
Annual,  5^1 ;  Page  v.  Ge'ne'res,  Ibid.  549; 
Deslia  V.  Baker,  3  Arkansas,  509 ;  Cris- 
man  v.  Swisher,  4  Dutclier,  149. 

■»  Baldwin  v.  Conger,  9  Smedes  & 
Marshall,  516. 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.        §  207 

§  206.  Though  an  officer's  return  is  in  general  conclusive 
against  him,^  yet  where  it  states  a  thing  which,  from  the  nature 
of  the  case,  must  be  a  matter  of  opinion  only,  he  is  not  concluded 
by  it,  but  may  explain  it  by  parol  evidence.  Thus,  where  the 
return  affixes  a  value  to  the  goods  levied  on,  the  officer  will  not 
be  concluded  by  it  \^  but  it  will  be  con^ideve^  primd  facie  a  just 
and  fair  valuation,  and  the  onus  will  rest  on  him  to  establish  the 
contrary .3  So,  where  a  sheriff  returned  that  he  had  attached 
certain  goods,  at  the  hour  of  five  o'clock ;  it  was  held,  that  the 
return  wsis  primd  facie  indicative  of  the  true  time,  and  might,  if 
no  other  standard  could  be  found,  be  conclusive  on  him  ;  but 
that  it  was  impossible  for  the  sheriff  to  know,  from  his  judgment 
or  his  watch,  that  five  o'clock  was  the  exact  period  of  the  levy, 
and  his  opinion  on  this  point,  unnecessarily  returned,  ought  not 
to  be  considered  as  a  conclusive  averment  of  fact,  but  might  be 
explained  by  parol  testimony  showing  the  moment  when  the  levy 
took  place.'* 

§  207.  It  is  proper  that  the  return  should  state  that  the  property 
levied  on  was  the  property  of  the  defendant.  What  effect  is  due 
to  the  absence  from  the  return  of  such  a  statement  ?  This  ques- 
tion has  come  up  in  various  forms,  both  as  to  real  and  personal 
property. 

In  Virginia,  on  appeal  from  a  judgment  rendered  against  a 
defendant  without  service  on  or  appearance  by  him,  the  judgment 
was  reversed  because  the  return  did  not  state  that  the  property 
attached  —  which  was  personalty  —  was  the  defendant's.^ 

In  Kentucky,  in  a  similar  case,  the  court  considered  the  return 
bad,  but  did  not  reverse  tlie  judgment,  because  after  it  was  ren- 
dered, the  officer  had,  by  leave  of  the  court,  amended  his  return, 
remedying  the  defect.^ 

In  Texas,  a  purchaser  of  real  estate  from  the  owner  thereof, 
without  notice  of  a  pending  attachment  levied  thereon,  sought 
relief  in  equity  against  the  judgment  in  the  attachment  suit,  as  a 
cloud  upon  his  title  ;  which  brought  up  the  question  of  the  validity 
of  the  attachment  proceedings.     Two  points  were  presented  :  the 

1  Ante,  §  204.  ^  Clay  v.  Neilson,  5  Kandolph,  596. 

2  Denton  v.  Livingston,  9  Johnson,  96.  «  Mason  v.  Anderson,  ;]  Monroe,  293. 

3  Pierce  v.  Strickland,  2  Story,  292.  In   Missouri,  the   court   incidentally  ex- 
*  Williams  v.  Cheesborough,  i  Conn,  pressed   the    same   view.     Anderson    v. 

356.  Scott,  2  Missouri,  15. 

[1G9] 


§  207         EXECUTION  AND  RETURN  OF  ATTACHMENT.     [CHAP.  VII. 

sufficiency  of  the  description  in  the  sheriff's  return  to  identify  the 
property,  and  the  effect  of  the  absence  from  the  return  of  any 
statement  that  the  property  leyied  on  was  the  defendant's.  Both 
were  held  to  be  "  defects  of  so  giaye  a  character  that  no  lien  on 
the  property  M-as  created  by  yirtue  of  the  attachment ;  at  least  as 
against  a  purchaser  from  the  defendant,  without  actual  notice  of 
the  attachment  proceedings."  ^ 

In  Kansas,  a  purchaser  of  a  steamboat  from  the  owner,  pending 
an  attachment  against  the  latter,  of  which  the  purchaser  had 
knowledge,  and  under  which  the  boat  had  been  seized,  took  the 
boat  from  the  sheriff  by  a  writ  of  replevin.  The  sheriff,  in  sup- 
port of  his  possessory  right,  offered  in  evidence  the  record  of  the 
judgment  in  the  attachment  suit  and  the  order  of  repossession  to 
him  therein.  By  this  record  it  appeared  that  the  attachment 
proceeding  was  without  service  of  process  upon  the  defendant, 
who  was  a  non-resident ;  though  he  was  notified  by  publication  ; 
and  that  the  sheriff's  return  did  not  state  whose  property  the 
boat  was.  The  court  below  ruled  out  the  record  as  evidence  ; 
and  the  Supreme  Court  sustained  that  ruling,  upon  the  ground 
that,  as  it  did  not  appear  that  any  property  of  the  attachment 
defendant  had  been  attached,  there  was  no  authority  in  the  court 
out  of  which  the  attachment  issued  to  render  any  judgment  what- 
ever in  the  attachment  suit.^ 

Such  are  the  cases  on  that  side  of  the  question. 

On  the  other  hand,  there  are  cases  in  New  York,  Alabama, 
Mississippi,  and  Iowa. 

In  New  York,  on  certiorari  to  bring  up  proceedings  in  attach- 
ment before  a  justice  of  the  peace,  where  judgment  was  rendered 
w^ithout  service  of  process  upon  the  defendant,  it  was  objected 
that  the  constable's  return  did  not  show  that  the  property  levied 
on  was  the  defendant's.  The  case  was  like  those  in  Virginia  and 
Kentucky,  just  referred  to.  The  court  held  the  return  sufficient ; 
considering  the  fair  and  reasonable  intendment  to  be,  that  the 
property  taken  belonged  to  the  defendant.^ 

In  Alabama,  judgment  was  rendered  against  an  absent  defend- 
ant, without  service  of  process  upon  or  notice  to  him.     On  error, 

'  Meuley   v.   Zeigler,   23    Texas,    88.  an  ancillary  attacliment,  in  aid  of  a  suit 

In  Stoddart  v.  McMalian,  35  Texas,  267,  in  wliieli  the  defendant  had  been  served 

the  court  adhered  to  its  previous  position  with  summons. 

wliere  the  suit  was  brought  by  attach-  ^  j^epine  v.  McPherson,  2  Kansas,  340. 

ment,  but  held  the  rule  inapplicable  to  ^  Johnson  v.  Moss,  20  Wendell,  145. 

[170] 


CHAP.  VII.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.         §  207 

it  was  sought  to  reverse  this  judgment,  upon  the  ground  that  the 
sheriff's  return  of  the  levy  of  the  writ  of  attachment  did  not  state 
that  the  property  seized  was  the  defendant's :  the  same  kind  of 
case  as  those  in  Virginia,  Kentucky,  and  New  York.  The  point 
was  overruled,  the  court  thus  expressing  itself:  "  The  sheriff  is 
an  officer  placed  under  great  responsibility  by  the  law,  which  de- 
fines his  duties.  He  pledges  to  the  public,  under  the  solemnity 
of  an  oath,  his  integrity  and  diligence ;  and  consequently  every 
reasonable  intendment  must  be  made  in  favor  of  the  regularity  of 
his  official  acts.  When  he  receives  process  requiring  him  to  levy 
upon  the  property  of  a  particular  individual,  and  he  returns  it 
according  to  its  mandate,  with  his  indorsement  stating  that  he 
has  levied  the  same  on  property  (particularly  describing  it),  we 
must  intend  that  the  property  seized  belonged  to  the  defendant ; 
because  the  process  only  authorized  a  levy  upon  his  eifects."  ^  In 
a  subsequent  similar  case,  where  real  estate  was  attached,  the 
court  applied  the  same  doctrine,  holding  the  principle  applicable 
to  all  cases  alike.^ 

In  Mississippi,  on  a  motion  to  quash  a  sheriff's  return  of  attach- 
ment of  real  estate,  because  it  failed  to  state  that  the  property 
was  the  defendant's,  the  court  cited  and  followed  the  ruling  in 
Alabama.^ 

In  Iowa,  in  conflicts  between  titles  to  real  estate  derived  from 
the  same  party,  on  the  one  side  by  his  conveyance,  and  on  the 
other  through  ex  parte  attachment  proceedings,  the  Supreme 
Court  first  held,  that  those  proceedings  imparted  no  title,  where 
the  sheriff's  return  did  not  state  that  the  property  levied  on  was 
the  defendant's;^  but  afterwards  this  position  was  abandoned, 
and  the  same  ground  taken,  substantially,  as  in  New  York  and 
Alabama.^ 

Such  are  the  decisions  on  this  side  of  the  question.  Different 
in  facts,  and  not  so  directly  in  point,  are  cases  in  Maine  and  Wis- 
consin. 

In  the  former  State,  one  claimed  title  through  an  attachment, 
which  the  officer  had  returned  levied  on  property  "supposed" 

1  Bickerstaff  v.    Patterson,    8   Porter,  2  T^ucas  v.  Godwin,  6  Alabama,  831. 

245.     f^ee  Kirksey  )'.  Bates,  1   Alabama,  »  Saunders  v.  Columbus  Life  Ins.  Co., 

303;  Miller   v.   McMillan,   4    Ibid.    527;  4.3  Mississippi,  583. 

Thornton   v.  Winter,   9  Ibid.  013 ;  King  *  TifTany  v.  Glover,  3  G.  Greene,  387. 

V.  Bucks,  11  Ibid.  217.  *  Rowan  v.  Lamb,  4  G.  Greene,  468. 

[171] 


§  208        EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

to  belong  to  the  defendant ;  and  it  was  held,  that  the  qualifying 
term  "supposed"  did  not  impair  the  effect  of  the  attachment.^ 

In  the  latter  State,  under  a  writ  against  S.  and  E.,  real  estate 
was  attached,  and  returned  as  the  property  of  E.,  when,  in  fact, 
it  was  that  of  S.  The  attachment  suit  proceeded  to  judgment 
against  both,  and  the  property  was  sold  under  execution.  In  a 
suit  between  the  purchaser  at  that  sale,  and  a  purchaser  from  S., 
it  was  held,  that  the  title  through  the  attachment  proceedings 
was  not  vitiated  by  the  return  of  the  property  as  E.'s,  when  it 
was,  in  fact,  that  of  S.^ 

§  208.  By  the  general  principles  of  law,  independent  of  any 
statutory  regulation,  the  officer  is  bound  to  give,  as  nearly  as  it 
can  reasonably  be  done,  in  his  return,  or  in  a  schedule  or  inven- 
tory annexed  thereto,  a  specific  description  of  the  articles  attached, 
their  quantity,  size,  and  number,  and  any  other  circumstances 
proper  to  ascertain  their  identity.^  If  he  give  such  description  in 
his  return,  it  is  not  necessary  that  he  should  accompany  it  with  a 
separate  schedule,  though  the  statute  require  him  to  return  the 
writ,  "  with  his  return  indorsed  thereon,  and  a  schedule  of  the 
property  attached."^  It  does  not  seem,  however,  that  any  more 
precision  should  be  exhibited  in  the  return  than  is  necessary  for 
the  identification  of  the  property.  Hence,  where  a  sheriff  re- 
turned an  attachment  of  four  horses  (describing  their  color),  as 
the  property  of  the  defendant,  it  was  held  sufficient.^  So,  where 
an  officer  returned  that  he  had  attached  all  the  "  stock  of  every 
kind"  in  a  woollen  factory  particularly  described,  specifying  the 
stock  as  a  "lot  of  dye-wood  and  dye-stuff,"  —  "lot  of  clean 
wool,"  —  "sixteen  pieces  of  black  Oxford  mixed  cassimere,"  — 
"  twenty-five  pieces  doeskins  and  tweeds,"  —  "fifty-one  pieces  of 
unfinished  cloth," — "lot  of  cotton  wool,"  —  "lot  of  colored 
wool,"  —  "cotton  wool,  oils,"  &c.,  "in  said  woollen  factory,"  — 
the  return  was  held  sufficient.^  But  a  return  of  an  attachment 
of  "a  stock  of  goods,  wares,  and  merchandise,"  without  any 
specification  thereof,  either  in  the  return  or  in  an  annexed  sched- 

1  Bannister  y.  Higginson,  15  Maine,  73.  *  Pearce    v.    Baldridge,    7    Arkansas, 

"^  Robertson  v.  Kinkead,  26  Wisconsin,  413. 
560.  5  Gary  v.  McCown,  6  Alabama,  370 ; 

3  Pierce  v.  Strickland,  2  Story,  292;  Wliarton  v.  Conger,  9  Smedes  &  Mar- 
Baxter  ;-.  Rice,  21  Pick.  197 ;  Ilaynes  v.  shall,  510. 

Small,  22  Maine,  14;  Toulniin  v.  Lesesne,  ^  Ela  v.  Shepard,  32  New  Hamp.  277. 

2  Alabama,  359. 

[172} 


CHAP.  VII.]      EXECUTION  AND  RETURN  OE  ATTACHMENT.         §  210 

ule,  was  held  insufficient.^  So,  where  an  officer  returned  an  at- 
tachment of  "all  the  wood,  hay,  bark,  and  lumber  in  the  town  of 
W.  in  which  the  defendant  has  any  right,  title,  interest,  or  es- 
tate," it  was  held  to  be  too  indefinite  to  amount  to  an  attachment 
of  a  quantity  of  hay  in  a  barn,  though,  at  the  time,  the  officer 
put  up  a  paper  on  the  barn,  with  the  following  notice  upon  it: 
"  I  have  attached  all  the  hay  in  this  barn  in  which  S.  (the  defend- 
ant) has  any  interest."  ^  A  failure  to  specify  the  articles  attached 
will,  however,  subject  the  officer  to  nominal  damages  only,  unless 
special  damage  be  shown  ;  ^  and  will  not  in  any  case  authorize 
the  attachment  to  be  quashed.* 

§  209.  Unless  required  by  statute,  it  is  no  part  of  an  officer's 
duty  to  affix  a  valuation  to  the  property  he  attaches.^  We  have 
just  seen  that  the  statement  of  a  valuation  will,  however,  be 
primd  facie  evidence,  as  against  him,  of  its  OAvn  correctness.^ 
The  omission  to  affix  a  value,  when  he  is  not  bound  to  state  it, 
can  hardly  in  any  case  prejudice  the  officer.  In  such  an  extreme 
case  as  arose  in  Maine,  where  there  was  an  entire  absence  of  all 
evidence  of  the  value  of  the  property,  it  would  probably  be  held, 
as  it  was  there,  that  the  property  was  of  the  value  commanded  to 
be  attached." 

§  210.  Where  an  officer  is  a  party  either  claiming  or  justifying 
under  his  own  official  acts,  his  return  must  be  received  as  evi- 
dence ;  otherwise  it  would  be  impossible,  in  most  cases,  to  prove 
an  attachment  of  property  on  mesne  process,  or  its  seizure  on  ex- 
ecution. The  officer  might  produce  his  precept  and  show  his  re- 
turn upon  it,  but  if  this  be  not  primd  facie  evidence,  he  could 

1  Messncr  v.  Lewis,  20  Texas,  221.  tion,  derived  from  an  inspection  of  the 
'^  Bryant  /•.  Osgood,  62  New  Hamp.  records,  as  to  wliether  sucli  lot  of  hay 
182.  The  court  said  :  "  Tiie  return  gave  had  been  attached  or  not;  and  a  dispute 
information  that  he  had  attaclied  all  the  would  instantly  arise  between  the  pur- 
hay  in  the  town  of  \V.  in  which  S.  had  chaser,  or  subsequent  attaching  creditor, 
any  interest ;  but  with  regard  to  quan-  and  the  officer,  as  to  the  identity  of  the 
tity,  or  any  particular  location,  and  property  ;  and  infinite  confusion  would 
whether  the  hay  was  in  one  or  more  result,  contrary  to  the  demands  of  public 
diHerent  lots  or  localities,  there  was  no  policy." 

specification  in  the  return ;  and  if,  after  »  Bruce  v.  Pettengill,  12  New  Ilamp. 

the  filing  of  this  return,  a  purchaser,  or  341. 

a  subsequent  attaching  creditor,  should  *  Green  v.  Pyne,  1  Alabama,  235. 

find  a  quantity  of  hay,  either  up(m    or  ^  Pierce  ;;.  Strickland,  2  Story,  2^2. 

not  upon  the  premises  occupied  by  S.,  *'  Ante,  §  206. 

he  could  have  no  knowledge  or  informa-  "^  Childs  v.  Ham,  23  Maine,  74. 

[173] 


§  210  ?)      EXECUTION  AND  RETURN  OF  ATTACHMENT.     [CHAP.  VII. 

never  prove  the  attachment,  unless  he  took,  or  happened  to  have 
with  him,  a  witness  to  prove  tlie  trutli  of  liis  return.  It  may 
therefore  he  laid  down  as  an  unquestioned  rule,  that  the  returns 
of  sworn  otheers,  acting  within  the  sphere  of  tlieir  official  duty, 
are  ahvaj's  competent  evidence,  and  are  to  he  presumed  to  he 
correct,  until  the  contrary  be  shown. ^  In  New  Hamj^shire,  as 
between  the  officer  and  a  trespasser,  an  officer's  return  of  an  at- 
tachment of  personal  property  is  equivalent  to  a  return  of  all  the 
facts  and  acts  done,  which  are  required  to  constitute  a  valid  at- 
tachment, and  is  conclusive  of  the  fact,  and  cannot  be  disproved 
b}^  parol  evidence.^  And  so,  in  Maine,  where  in  an  action  of  re- 
plevin against  him,  he  sets  up  the  attachment  as  a  defence.^ 

§  210  a.  An  officer  who  justifies  the  taking  of  property  under 
an  attachment  must  show  that  the  attachment  was  actually  re- 
turned at  the  time  when  it  was,  by  law,  returnable.  If  the  action 
against  him  be  brought,  and  a  trial  therein  had,  before  the  writ 
under  which  he  acted  is  returnable,  the  production  of  the  writ, 
with  his  return  thereon,  will  be  sufficient,  because  he  is  the 
proper  custodian  of  the  writ  until  the  return  day.  But  if  he  fails 
to  make  his  return  in  the  time  required  by  law,  he  cannot  justify 
under  it,  whether  the  action  be  brought  before  or  after  the  return 
day."^  But  where,  by  a  settlement  between  the  jparties,  it  is 
agreed  that  the  property  shall  be  restored  to  the  defendant,  and 
the  writ  not  returned,  the  officer,  when  sued  for  making  the  at- 
tachment, will  not  be  precluded,  by  his  failing  to  return  the  writ, 
from  justifying  under  it.^  And  when  property  attached  is  sur- 
rendered at  the  request  of  the  defendant,  and  money  is  sub- 
stituted therefor  as  an  equivalent,  the  substitution  operates  as  an 
accord  and  satisfaction  of  any  claim  of  the  defendant  against  the 
officer  for  attaching  the  property,  and  enables  the  officer  to  justify 
under  the  writ,  although  it  was  not  returned.^ 

§  210  h.  Where  an  officer  justifies  under  an  attachment,  a  mis- 
description in  his  return  of  an  article  of  personal  property  attached 

1  Bruce  v.  HoUlen,  21  Pick.  187  ;  Sias  Morse  v.  Smith,  47  Ibid.  474  ;  Latlirop  v. 
V.  Badger,  6  New  Hamp.  393  ;  Nicliols  v.     Blake,  3  Foster,  46. 

Patten,  18  Maine,  '£61 ;  Policy   v.  Lenox  »  Smith  v.  Smith,  24  Maine,  555. 

Iron  Works,  4  Allen,  329;    Chadbourne  *  Russ  u.  Butterfield,  6  Gushing,  242; 

V.  Sumner,  16  New  Hamp.  129.  Williams  v.  Babbitt,  14  Gray,  141. 

2  Brown   v.  Davis,  9  New  Hamp.  76;  *  Paine  v.  Farr,  118  Mass.  74. 


[174] 


6  Taylor  v.  Knowlton,  10  Allen,  137. 


CHAP.  YIt.]      EXECUTION  AND  RETURN  OF  ATTACHMENT.         §  213 

will  not  vitiate  the  attachment,  if  the  appearance  and  use  of  the 
article  are  such  that  it  may  have  been  naturally  and  in  good  faith 
so  misdescribed.  And  this  is  not  a  question  of  law  to  be  decided 
by  the  court,  but  of  fact  to  be  tried  by  a  jury.^ 

§  211.  When  an  attachment  has  been  returned,  the  return  is 
beyond  the  reach  of  the  officer  and  of  the  court  into  wliich  it  is 
made,  unless  a  proper  case  be  presented  for  the  court  to  grant 
leave  to  amend  it.  The  court  will  not  order  a  return  to  be  set 
aside,  upon  the  application  of  a  party  to  the  cause,  on  his  aver- 
ring its  incorrectness ;  ^  nor  can  a  court,  where  one  tract  of  land 
is  attached,  and  so  returned,  require  the  officer,  by  rule,  to  sub- 
stitute a  different  tract.^ 

§  212.  As  a  general  proposition,  every  court  may  allow  amend- 
ments of  returns  upon  its  process.  All  applications  for  the 
exercise  of  this  power  are  addressed  to  the  sound  legal  discretion 
of  the  court,  to  be  determined  by  the  nature  and  effect  of  the 
proposed  amendment ;  ^  and  being  so,  a  refusal  to  allow  an 
amendment  will  not  be  error.^  And  though  amendments  may 
be  allowed,  which,  on  consideration,  may  appear  of  doubtful  ex- 
pediency, yet  if  they  are  permitted  in  the  legal  exercise  of  a  dis- 
cretion, their  propriety  will  not  in  general  be  questioned  on 
exceptions.  But  if  the  amendment  be  one  which  the  law  does 
not  authorize,  it  is  otherwise.^  The  exercise  of  this  discretion 
is,  in  the  absence  of  power  conferred  by  statute,  confined  to  the 
court  out  of  which  the  process  issued  ;  therefore  a  superior  court 
has  no  right,  on  a  trial  before  it,  to  permit  a  return  made  to  an 
inferior  court  to  be  amended.' 

§  213.  An  officer  cannot,  as  a  matter  of  rigid,  amend  a  return 
he  has  once  duly  made.  This  would  be  to  place  at  his  discretion 
the  verity  and  consistency  of  records,  and  the  effect  and  authority 
of  the  most  solemn  judgments.^     But  until  the  process  is  actually 

1  Briggs  V.  Mason,  31  Vermont,  433.  «  Fairfield  v.  Paine,  23  Maine,  498. 

2  Maris  v.  Scliermerhom,  3  Wharton,  ''  Sniitii  y.  Low,2  Iredell,  457 ;  Harper 
13.                                                                         V.  Miller,  4  Ibid.  34;  lirainard  v.  Burton, 

^  Steinmetz  v.  Nixon,  3  Yeates,  285.  5  Vermont,  97. 

4  Miller  i;.   Sliackletord,  4  Dana,  264 ;  »  Miller  v.  Shaokleford,  4  Dana,  264  ; 

Fowble  V.  Walker,  4  Ohio,  64;  Palmer  Palmer  f.  Thayer,  28  Conn.  237;  Hill  v. 

V.  Thayer,  28  Conn.  237;    Hill  v.   Cun-  Cunningham,  25  Texas,  25.     In  Morris 

ningham,  25  Texas,  25.  v.  Trustees,  15  Illinois,  266,  it  was  held 

3  Planters'  Bank  v.  Walker,  3  Smedes  that  amendments  by  slieritis  of  their  re- 
&  Marshall,  409,  turns  are  of  course.  ,. ,  „  ^ ., 

[1<0] 


§  216        EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

deposited  in  tlie  clerk's  office,  the  return  does  not  become  matter 
of  record,  even  thungli  the  officer  keep  the  process  in  his  posses- 
sion long  after  the  time  when  it  should  he  returned  ;  and  until 
the  return  is  actually  made,  the  process  is  under  his  control  and 
in  his  power,  and  he  does  not  need  the  authority  of  the  court  to 
amend  it.^ 

§  214.  If  the  amendment  is  sought  in  a  mere  matter  of  form, 
such  as  affixing  the  signature  of  the  officer  to  a  return  already 
written  out,  but  which  by  oversight  was  not  signed,  there  can  be 
no  good  reason  why  it  should  not  be  allowed.^  And  where  the 
mistake  is  a  mere  slip  of  the  pen,  manifest  on  the  face  of  the 
record,  and  concerning  which  no  party  who  examined  the  record 
could  doubt,  the  officer  will  be  allowed  to  amend,  even  after  final 
judgment  in  the  cause.^ 

§  215.  When  an  amendment  is  allowed,  it  relates,  as  between 
the  parties  to  the  suit,  to  the  time  when  the  original  return  was 
made;^  and  the  amendment  and  the  original  will,  if  necessary 
to  a  proper  understanding  of  the  doings  of  the  officer,  be  consid- 
ered as  one  return.^ 

§  216.  There  are  numerous  decisions  bearing  on  the  subject 
of  amendments  of  returns  on  final  process,  which  may  have  more 
or  less  analogy  to  the  subject  now  before  us  ;  but  it  is  deemed 
advisable  to  consider  here  only  those  which  refer  to  mesne  pro- 
cess. In  Mississippi,  it  is  held  to  be  error  to  permit  a  sheriff  to 
amend  his  return,  after  judgment,^  or  after  the  return  term  of 
the  writ,  without  notice  to  the  adverse  party ,'^  or  after  his  term 
of  office  has  expired.^  In  Virginia,  it  has  been  decided  that  the 
court  ought  to  permit  a  sheriff  to  amend  his  return  upon  a  writ 
of  ad  quod  dainnum,  at  any  time  before  judgment  on  it ;  ^  and  in 

1  Welsh  V.  Joy,  13  Pick.  477.  ^  Layman  v.  Beam,  6  "VVliarton,  181. 

2  Dewar  v.  Spence,  2  VVliarton,  211  ;  '^  Iluglies  v.  Lapice,  5  Smedes  &  Mar- 
Childs  V.  Barrows,   9   Metcalf,  413.     In     shall,  451. 

Tennessee  it  was  lield,  that  the  indorse-  "^  Dorsey  v.  Pierce,  5  Howard  (Mi.), 

mentoftiie  sheriff's  return  on  the  writ  173;  Williams   v.    Oppelt,   1    Smedes   & 

without  his  signature  was  a  good  levy.  Marshall,  559. 
Lea  I'.  Maxwell,  1  Head,  365.  **  Cole  v.  Dugger,  41  Mississippi,  557. 

•i  Johnson  v.  Day,  17  Pick.  106.  9  Bullitt  v.  Winston,  1  Munford,  269 ; 

■•  Smith  V.  Leavitts,  10  Alabama,  92 ;  Dawson  r.  Moons,  4  Ibid.  535;  Baird  t;. 

Kitchen  v.  Keinsky,  42  Mississippi,  427  ;  Rice,  1  Call,  18. 
Hill  V.  Cunningham,  25  Texas,  25. 
[17G] 


CHAP  VII.]         EXECUTION  AND  RETURN  OF  ATTACHMENT.     §  217 

Kentucky,  a  like  amendment  was  allowed  several  years  after  the 
writ  was  executed,  there  being  the  inquest  to  amend  by.^  In 
Kentuck}^  a  sheriif  may  amend  his  return  of  an  attachment,  so 
as  to  show  that  the  effects  attached  were  the  property  of  the  de- 
fendant, as  well  before  as  after  judgment,  and  at  a  subsequent 
term; 2  and  may  amend  iiis  return  on  a  petition  and  summons, 
after  a  writ  of  error  is  sued  out  to  reverse  the  judgment.^  In 
Massachusetts,  an  amendment,  in  one  case,  was  allowed  after 
verdict ;  *  and  in  another  case,  where  the  return  stated  an 
attachment  of  property,  and  a  garnishment,  but  omitted  to  state 
any  service  upon  the  defendants,  the  Supreme  Court,  after  a  writ 
of  error  was  sued  out  to  reverse  the  judgment,  continued  the 
case  until  an  aj)plication  could  be  made  to  the  inferior  court  for 
leave  for  the  officer  to  amend  his  return ;  intimating  that  the 
inferior  court  had  the  power  to  grant  the  leave.^  But  after  the 
case  had  gone  back  to  the  inferior  court,  which  refused  to  allow 
the  amendment,  the  Supreme  Court  declined  to  interfere,  because 
the  matter  was  peculiarly  within  the  discretion  of  the  inferior 
court.^  In  Maryland,  where  a  sheriff  erroneously  made  a  return 
of  cepi  corpus,  upon  a  writ  of  attachment,  he  was  allowed,  six 
years  afterwards,  to  amend  the  return."  In  Alabama,  a  return 
may  be  amended  after  demurrer.^  Where  an  officer  made  a 
minute  on  the  writ  of  the  time  and  mode  of  service,  he  was  per- 
mitted, in  Massachusetts,  after  he  went  out  of  office,  and  after 
the  case  had  gone  into  the  appellate  court,  to  complete  his  return 
from  his  minutes  on  the  writ.^  But  in  Connecticut,  where  a 
sheriff  attached  goods,  which  were  subject  to  a  previous  attach- 
ment, and  the  court  out  of  which  the  j)rocess  issued  allowed 
him,  after  he  went  out  of  office,  to  amend  his  return,  by  adding 
to  it  that  he  attached  the  property  subject  to  a  prior  attachment, 
it  was  held  by  the  Supreme  Court  that  the  amendment  could  not 
be  made ;  not  only  because  no  notice  to  the  parties  was  given  of 
the  motion  to  amend,  but  because  the  returning  officer  was  no 
longer  in  office.^'' 

§  217.  In  all  cases  where  application  is  made  for  leave  to  amend 

1  Gay  V.  Caldwell,  Hardin,  63.  6  Tliatclier  v.  Miller,  13  Mass.  270. 

2  Mason  v.  Anderson,  3  Monroe,  293;  ''  Iluteliins  v.  Brown,  4  Harris  &  Mc- 
Malone  v.  Samuel,  3  A.  K.  Mar.sliall,  350.     Henry,  4'.J8. 

*  Irvine  v.  Scobee,  5  Littell,  70.  **  Moreland  v.  Ruflfin,  Minor,  18. 

*  Johnson  v.  Day,  17  Pick.  lOG.  »  Adams  v.  Robinson,  1  Pick.  461. 
^  Tliatcher  v.  Miller,  11  Mass.  413.                i"  Wilkie  v.  Hall,  15  Conn.  32. 

12  [177] 


§  219       EXECUTION  AND  RETURN  OF  ATTACHMENT.      [CHAP.  VII. 

a  return,  there  should  he  something  to  amend  hy;  though  this 
may  not  he  required  hy  every  court  to  which  such  applications 
are  addressed.  In  the  case  previously  referred  to  in  Massachu- 
setts, where  the  cause  was  continued  by  the  Supreme  Court  to 
give  time  for  an  application  to  the  inferior  court  for  leave  to 
amend  the  return,  one  of  tlie  reasons  assigned  for  not  interfering 
with  the  refusal  of  the  inferior  court  to  allow  the  amendment, 
was,  that  there  was  nothing  to  amend  by  but  the  affidavit  of  the 
officer.  The  court  said  :  "  At  the  same  term  in  which  a  precept 
is  returnable,  to  correct  a  mistake  or  omission,  may  be  highly 
proper ;  but  for  an  officer  to  undertake,  six  years  after  a  defect- 
ive return,  to  know  with  certainty  tlie  performance  of  a  partic- 
ular duty,  when  he  is  daily  and  hourly  performing  similar  duties 
upon  different  persons,  is  more  than  can  be  expected  of  men, 
however  strong  their  memory.  In  the  cases  cited,  where  amend- 
ments have  been  permitted,  there  was  something  on  the  record, 
by  which  the  correction  could  be  made  ;  and  in  such  cases  there 
can  be  no  difficulty."  ^ 

§  218.  Where  an  officer,  immediately  upon  receiving  a  writ, 
with  directions  to  attach  certain  real  estate  of  the  debtor,  made 
a  memorandum  upon  the  writ  that  he  attached  accordingly,  stat- 
ing the  day  and  month,  but  afterwards,  by  mistake,  returned  that 
he  attached  on  the  same  day  of  the  succeeding  month,  he  was 
allowed  to  correct  the  error,  there  being  something  to  amend  by.- 
But  an  amendment  was  refused,  in  the  date  of  a  return,  after  a 
lapse  of  several  years,  where  the  officer  made  no  minute  of  his 
doings  at  the  time  of  the  service.^ 

§  219.  In  general,  no  amendment  of  an  officer's  return  will  be 
permitted,  or  allowed  to  have  effect,  when  it  would  destroy  or 
lessen  the  rights  of  third  persons,  previously  acquired,  bond  fide, 
and  without  notice  by  the  record,  or  otherwise.  Therefore, 
where  an  officer  returned  on  a  writ  of  attachment,  that  he  had 
attached  land  of  the  defendant,  on  the  6th  of  June;  and  after- 
wards, by  leave  of  court,  he  was  permitted  to  amend  his  return, 
by  substituting  March  for  June  ;  it  was  held,  that  the  amendment 

1  Thatcher  v.  Miller,  13  Mass.  270;  v.  Caldwell,  Hardin,  63;  Palmer  v. 
Emerson  v.  Upton,  9  Pick.  167.  Thayer,  28  Conn.  237. 

2  Haven  v.  Snow,    14  Pick.  28 ;  Gay  ^'Hovey  v.  Wait,  17  Pick.  PJG;  Fair- 

field V.  Paine,  23  Maine,  4y8. 
[178] 


CHAP.  VII.]        EXECUTION  AND  RETURN  OF  ATTACHMENT.      §  220 

wiis  not  operative  as  against  a  mortgage  of  the  land,  recorded  in 
May^  though  the  evidence  was  sufficient  to  satisfy  the  court  that 
the  attachment  was  levied  in  March,  and  that  the  return,  as  first 
made,  was  a  mistake.^ 

§  220.  But  if  the  party  who  has  acquired  rights  which  would 
be  injuriously  affected  by  the  amendment,  had  notice,  actual  or 
constructive,  that  the  ofiicer  had  done  his  duty,  and  that  there 
was  an  omission,  by  mistake,  in  his  return,  which,  if  supplied, 
would  perfect  the  officer's  proceedings,  or  if  that  fact  is  clearly 
manifest  on  the  record,  he  cannot  avail  himself  of  the  rule  above 
laid  down.  Thus,  A.  sued  out  an  attachment  against  B.  on  the 
19th  of  November;  on  the  next  day,  C.  likewise  obtained  an  at- 
tachment against  B.  The  same  attorney  acted  for  both  plaintiffs, 
having  a  full  knowledge  of  all  the  facts,  and  directing  the  order 
of  the  attachments.  The  sheriff,  in  returning  A.'s  attachment, 
dated  the  levy,  by  mistake,  on  the  19th  of  December,  whitle  he  re- 
turned C.'s  attachment  as  having  been  levied  on  the  20th  of 
JVovember ;  thus  giving  the  second  attachment  priority.  At  the 
return  term  of  the  writs,  the  sheriff  obtained  leave  to  amend  his 
return  on  A.'s  writ  by  inserting  November  instead  of  December ; 
and  this  amendment  was  held  effective  against  C,  because  he 
had,  through  his  attorney,  constructive  notice  that  A.'s  attach- 
ment was  anterior  to  his.^  So,  where  a  writ  of  attachment  was 
issued  and  levied  on  land,  on  the  4th  of  November,  1833,  and 
was  actually  returned  at  the  term  next  ensuing  its  date,  and 
judgment  was  rendered  at  the  June  Term,  1834,  though  the 
sheriff  returned  that  he  had  executed  it  on  the  4th  of  November, 
1834 ,  it  was  held,  that  the  sheriff  might  amend  his  return  ac- 
cording to  the  fact,  and  that  the  amendment  should  be  effective 
against  a  grantee  of  the  defendant  under  a  deed  dated  November 
26,  1833,  because  the  record  clearly  sliowed  the  mistake,  and  no 
one  could  by  possibility  be  misled  or  injured  by  it.^ 

1  Emerson  17.  Upton,  9  Pick.  167.    See  498;   Bowman   v.   Stark,  6   New  Hamp. 

Putnam   v.   Hall,  :>  Ibid.  41.5;  Hovey  y.  459;  Davidson   v.   Cowan,    1    Devereu.v, 

Wait,  17  Ibid.  190;  Williams  r.  Hrackctt,  304;  Uliio  Life  Ins.  &  Tr.  Co.  v.  Urbuna 

8  Mass.  240;  Means  v.  Osgood,  7  Maine,  Ins.  Co.,  13  Oliio,  '22\). 
14H;  Berry  v.  SjKvir,  13  Ibid.  187  ;  Ban-  ^  ii;,ven  v.  Snow,  14  Pick.  28. 

nister  v.  llifrj^inson,  lo    li)id.  73;   Oilman  *  Jolmson  v.  Day,  17  Pick.  lOG  ;  Cliilds 

V.  Stetson,  IG  Ibid.  124;  Kveletb  v.  Little,  v.  Barrows,  9  Metcalf,  413;  Fairfield  v. 

Ibid.   374;  Fairfield   v.   Paine,   23   Ibid.  Paine,  23  Maine,  498. 

[179] 


§  222         EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAP.  VIII. 


CHAPTER    VIII. 


EFFECT  AND   OFFICE   OF   AN   ATTACHMENT. 


§  221.  The  mere  issue  of  an  attachment  has  no  force  as  against 
the  defendant's  property,  either  with  reference  to  his  rights,  or 
to  those  of  third  persons,  therein  ;i  nor  has  its  lodgment  in  the 
hands  of  an  officer ;  ^  but  its  effect  is  to  be  dated  from  the  time 
of  its  actual  service.^  And  when  questions  arise  as  to  the  title 
of  property  claimed  through  an  attachment,  and  the  judgment 
and  execution  following  it,  the  rights  so  acquired  look  back  for 
their  inception,  not  to  the  judgment,  but  to  the  attachment,* 
Therefore,  where  land  was  attached  on  different  days,  under  two 
writs  in  favor  of  different  parties,  and  was  sold  under  the  execu- 
tion of  the  junior  attaclier,  such  sale  had  no  effect  to  discharge 
the  lien  of  the  senior  attachment.^ 

§  222.  The  levy  of   an  attachment  is  no    satisfaction  of  the 


^  Hears  i\  Winslow,  1  Smedes  &  Mar- 
shall, Ch'y,  449;  Williamson  v.  Bowie,  6 
Muiiford,  176  ;  Wallace  r.  Forest,  '2  Har- 
ris &  McHenry,  261 ;  Toiuliiison  v.  Stiles, 
4  Dutclier,  201. 

■•^  Crowninsliield  ?•.  Strobel,  2  Brevard, 
80;  Kobertson  v.  Forrest,  Ibid.  466; 
Betliune  v.  Gibson,  Ibid.  501  ;  Crocker  v. 
Eadcliffe,  3  Ibid.  23 ;  Lynch  v.  Crary,  52 
New  York,  181. 

3  Gates  V.  Bushnell,  9  Conn.  530; 
Sewell  V.  Savage,  1  B.  Monroe,  260; 
Nutter  V.  Conneit,  8  Ibid.  199;  Fitch  v. 
Waite,  5  Conn.  117  ;  Learned  v.  Vanden- 
burj^h,  8  Howard  Pract.  77 ;  Pond  v. 
GrilRn,  1  Alabama,  678 ;  Crowninsliield 
V.  Strobel,  2  Brevard,  80 ;  Robertson  v. 
Forrest,  Ibid.  466 ;  Bethune  v.  Gibson, 
Ibid.  501 ;  Crocker  v.  Kadcliffe,  3  Ibid. 
23;  Zeigenhagen  v.  Doe,  1  Indiana,  2'J6; 
Burklmrdt  i-.  McClellan,  15  Abbott  Pract. 
243,  v'ltf: ;  Taffts  v.  Manlove,  14  California, 
47 ;  Haldeman  v.  Hillsborough  &  Cin. 
R.  R.  Co.,  2  Handy,  101 ;  Kuhn  c.  Graves, 

[180] 


9  Iowa,  303;  Stockley  v.  Wadman,  1 
Houston,  350 ;  Rodgers  v.  Bonner,  45 
New  York,  379 ;  Lynch  v.  Crary,  52 
Ibid.  181 ;  Ensworth  v.  King,  50  Missouri, 
477. 

4  Tyrell  v.  Rountree,  7  Peters,  4G4 ; 
1  McLean,  95;  Stephen  v.  Tiia\er,  2 
Bay,  272;  Am.  Ex.  Bank  v.  Morris  Canal 
&  Banking  Co.,  6  Hill  (N.  Y.),  302;  Mar- 
tin V.  Dryden,  6  Illinois  (1  Gdman),  187; 
Redus  V.  Wofford,  4  Smedes  &  Marshall, 
579  ;  Brown  v.  Williams,  31  Maine,  403; 
Tappan  v.  Harrison,  2  Humphreys,  172; 
Oldham  v.  Scrivener,  3  B.  Monroe,  579; 
Lackey  v.  Seibert,  23  Missouri,  85 ;  Ens- 
worth  V.  King,  50  Ibid.  477  ;  Hannahs  v. 
Felt,  15  Iowa,  141  ;  Cockey  v.  Milne's 
Lessee,  16  Maryland,  200;  Wilson  v. 
Forsyth,  24  Barbour,  105 ;  Bagley  v. 
Ward,  37  California,  121 ;  Loubat  v. 
Kipp,  9  Florida,  60. 

•^  Hanauer  v.  Casey,  26  Arkansas, 
352. 


CHAP.  VIII.]      EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.         §  223 

plaintiff's  demand,  as  that  of  an  execution  is,  under  some  circum- 
stances ;  ^  nor  does  it  change  the  estate  of  the  defendant  in  the 
property  attaclied  ;2  though,  to  the  extent  of  its  lien,  his  absolute 
property  is  diminished.^  Nor  does  it  take  away  his  power  of 
transfer,  either  absolutely  or  in  mortgage,  subject  to  the  lien 
of  the  attachment.^  Nor  does  the  attaching  plaintiff  acquire  any 
property  thereby .^  Nor  can  he  sell  the  property  by  virtue  of 
the  attachment,  before  judgment  and  execution ;  but  can  do  so 
only  under  an  order  of  court,  or  of  the  judge  who  issued  the 
writ.6  Nor  has  the  court  authority  to  order  the  attached  property 
to  be  delivered  to  the  plaintiff.''  Therefore,  where  an  attaching 
creditor,  after  obtaining  judgment  in  the  action,  demanded  the 
attached  goods  of  tlie  officer,  who  refused  to  deliver  them,  and 
the  creditor  thereupon  sued  him ;  it  was  decided,  that  it  was  not 
the  duty  of  the  officer,  but  would  have  been  contrary  to  his  duty, 
to  make  such  a  delivery  ;  that  the  goods  were  in  the  legal  custody 
of  the  officer,  who  was  accountable  for  them  ;  and  that  the  gen- 
eral property  in  them  was  not  changed  until  a  levy  and  sale  by 
execution.^ 

.§  223.  It  is  a  well-settled  principle,  that  an  attaching  creditor 
can  acquire  through  his  attachment  no  higher  or  better  rights  to 
the  property  or  assets  attached,  than  the  defendant  had  lohen  the 
attachment  took  place,  unless  he  can  show  some  fraud  or  collusion 
by  which  his  rights  are  impaired.^  No  interest  suljsequently  ac- 
quired by  the  defendant  in  the  attached  property  will  be  affected 

'  McBride  v.  Farmers'  Bank,  28  Bar-  Brown,  24  Ibid.  89 ;  Warner  r.  Everett, 

hour,  476 ;  Maxwell  v.  Stewart,  22  Wal-  7  B.  Monroe.   262 ;  Wheeler  v.  Nichols, 

lace,  77.     Sfd  contra,  Yourt  v.  Hopkins,  32  Maine,  233;  Calkins  v.  Lockwood,  17 

24  Illinois,  326.  Conn.    154;  Merrick  y.  Hutt,   15  Arkan- 

•i  Bigel'ow   V.   Wilson,    1    Pick.    485;  sas,  331;  Klinck   v.   Kelly,  63  Barbour, 

Blake   v.    Shaw,  7    Mass.    605;  Starr  v.  622. 

Moore,  3  McLean,  354  ;  Tiernan  v.  Mur-  ^  Bigelow   v.   Willson,    1    Pick.   485 ; 

rah,  1   Robinson   (La.),  443;  Crocker  v.  Crocker    v.    Radcliffe,    3    Brevard,    23; 

Pierce,    31     Maine,     177  ;     Wheeler    v.  Willing  v.  Bleeker,  2  Sergeant  &  Rawle, 

Nichols,  32  Ibid.  233  ;  Perkins  v.  Norvell,  221 ;    Owings   v.   Norwood,    2   Harris   & 

6   Humphreys,    151 ;    Snell    v.   Allen,    1  Johnson,  96  ;  Goddard  v.  Perkins,  9  New 

Swan,   208  ;  Ohlham    v.  Scrivener,  3   B.  Hamp.  488  ;  Austin  v.  Wade,  Pennington, 

Monroe,  579;  lialdeman  v.  Hillsborough  2d  Ed.  727;  Foulks  v.  Pegg,  6  Nevada, 

&  Cin.   R.   R.  Co.,  2  ILandy,   101  ;  Mer-  136. 

rick  V.  Hutt,  15  Arkansas,  331  ;  Larimer  «  McKay   v.   Harrower,    27   Barbour, 

V.  Kelly,  10  Kansas,  298.  463. 

8  Grosvenor  v.  Gold,  9  Mass.  209.  '^  Welch  v.  Jamison,  1  Howard  (]Mi.), 

*  Bigelow   V.    Willson,    1    Pick.    485  ;  160. 

Denny  v.  Wiliard,   11    Il)id.  519  ;  Petty-  «  Blake  v.  Shaw,  7  Mass.  505. 

place  V.  Dutch,   13  Ibid.  388 ;  Arnold  v.  9  Post,  §  245. 

[181] 


§  224         EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAr.  VIII. 

by  tliG  attachment.^  If  tlio  ])roperty,  when  attached,  is  subject 
to  a  lien  boiut  fide  })hieed  upon  it  by  the  defendant,  that  lien  must 
be  respected,  and  the  attachment  postponed  to  it.^  And  tliis 
rule  was  once  lield  to  extend  to  at  least  one  description  of  what 
have  been  termed  silent  liens,  that  is,  liens  existing  merely  by 
operation  of  law.  Under  this  view  it  was  held  by  the  Circuit 
Court  of  the  United  States  for  Pennsylvania,  that  the  sale  of  a 
ship  under  attachment  had  no  effect  to  devest  a  lien  in  admiralty 
for  mariners'  wages.^  But  subsequently,  by  the  Supreme  Court 
of  Pennsylvania,  and  by  that  of  the  United  States,  it  was  de- 
cided that  an  attachment  issued  by  a  State  court  and  levied  upon 
a  vessel,  was  not  defeated  by  a  subsequent  proceeding  in  rem  in 
admiralty  for  such  wages.^ 

§  224.  When  an  attachment  is  served,  a  lien  on  the  property 
attached  is  created,  which  nothing  subsequent  can  destroy  but 
the  dissolution  of  the  attachment.^  It  is  said  to  be  beyond  the 
power  of  a  State  legislature  to  pass  an  act  annulling  it.^  And 
as  to  the  defendant,  though,  as  we  have  just  seen,  his  power  of 
alienation,  subject  to  the  attachment,  is  not  impaired,  yet  no 
subsequent  act  of  that  description  on  his  part  can  defeat  the 
attaclnnentj 


'  Crocker  v.  Pierce,  31  Maine,  177  ; 
Handly  v.  Pfister,  39  California,  283. 

2  Nathan  v.  Giles,  5  Taunton,  558, 
576;  Baillio  v.  Poisset,  8  Martin,  n.  s. 
387 ;  Frazier  v.  Willcox,  4  Robinson 
(La.),  517;  Peck  v.  Webber,  7  Howard 
(Mi.),  658;  Parker  v.  Farr,  2  Browne, 
331  ;  Reeves  v.  Johnson,  7  Halsted,  29 ; 
Meeker  v.  Wilson,  1  GaIlison,419;  HalJe- 
man  v.  Hillsborough  &  Cin.  R.  R.  Co.,  2 
Handy,  101. 

^  Taylor  v.  Royal  Saxon,  1  Wallace, 
Jr.,  311. 

*  Taylor  v.  Carryl,  24  Penn.  State, 
259;  s.  c.  20  Howard  Sup.  Ct.  583. 

5  Goore  v.  McDaniel,  1  McCord,  480 ; 
Peck  V.  Webber,  7  Howard  (Mi.),  658; 
Smith  V.  Bradstreet,  16  Pick.  264  ;  Peo- 
ple V.  Cameron,  7  Illinois  (2  Gilnian), 
468;  Vinson  v.  Huddleston,  Cooke,  254; 
Van  Loan  v.  Kline,  10  Johnson,  129 ; 
Desha  v.  Baker,  3  Arkansas,  509  ;  Frell- 
son  V.  Green,  19  Ibid.  376  ;  Harrison  v. 
Trader,  29  Ibid.  85;  Davenport  v.  Lacon, 
17    Conn.    278;    Schacklott    &    Clyde's 

[182] 


Appeal,  14  Penn.  State,  326;  Erskine  v. 
Staley,  12  Leigh,  406 ;  Moore  v.  Holt,  10 
Grattan,  284  ;  Cary  v.  Gregg,  3  Stewart, 
433 ;  Murray  v.  Gibson,  2  Louisiana  An- 
nual, 311 ;  Hervey  v.  Cliampioii,  11  Hum- 
phreys, 569 ;  Snell  v.  Allen,  1  Swan,  208 ; 
Zeigenhagen  v.  Doe,  1  Indiana,  296 ; 
Pierson  v.  Robb,  4  Illinois  (3  Scamnion), 
139;  Martin  v.  Dryden,  6  Illinois  (1  Gil- 
man),  187  ;  Lyon  v.  Sanford,  5  Conn. 
544;  Lackey  v.  Seibert,  23  Missouri,  85; 
Hannahs  v.  P'elt,  15  Iowa,  141  ;  Chandler 
V.  Dyer,  37  Vermont,  345;  Ward  v.  Mc- 
Kenzie,  33  Texas,  297. 

^  Hannahs  v.  Felt,  15  Iowa,  141.  But 
if  the  legislature  repeal  the  law  author- 
izing proceedings  by  attachment,  it  was 
held  in  Indiana,  there  can  be  no  further 
movement  in  pending  suits  of  that  kind. 
See  post,  §  412. 

7  McBride  v.  Floyd,  2  Bailey,  209; 
Harvey  v.  (irynies,  8  Martin,  395 ;  Bach 
V.  Goodrich,  9  Robinson  (La.),  391; 
Franklin  Fire  Ins.  Co.  v.  West,  8  Watts 
&  Sergeant,  350  ;  Randolph  v.  Carlton,  8 


CHAP.  VII I.]       EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.         §  225 

§  224  a.  The  power  to  levy  by  virtue  of  an  attachment  does 
not  survive  the  recovery  of  judgment  in  the  action,  and  no  new- 
right  or  interest  in  the  property  of  the  defendant  can  be  there- 
after acquired  under  it.^  And  when,  in  a  suit  by  attachment, 
the  pLiintiff  obtains  a  judgment  which,  by  the  existing  law,  is  a 
lien  upon  the  property  attached,  the  lien  of  the  attachment 
becomes  merged  in  that  of  the  judgment,  and  the  only  effect 
thereafter  of  the  attachment  lien  upon  the  property  is  to  pre- 
serve the  priority  therel)y  acquired,  and  this  priority  is  maintained 
and  enforced  under  the  judgment.  If  the  plaintiff  neglect, 
within  the  lawful  period  of  liis  judgment  lien,  to  subject  the 
property  to  execution,  the  lien  of  the  attachment  does  not 
revive  on  the   expiration  of   the   judgment  lien.^ 

§  225.  In  connection  with  the  lien  acquired  by  an  attaching 
creditor  has  come  up,  in  different  forms,  the  question  of  his  right 
to  secure  the  benefit  of  his  lien,  as  against  fraudulent  conveyances 
of,  and  incumbrances  upon,  the  attached  property.  The  first 
shape  this  question  assumed  was,  as  to  the  attaching  creditor's 
right  to  maintain  a  creditor's  bill  in  equity  to  set  aside  such  a 
conveyance  or  incumbrance.  The  general  rule  that  a  creditor  at 
large,  before  he  obtains  judgment,  is  not  entitled  to  such  a  remedy, 
is  familiar  to  the  legal  mind.  That,  like  all  general  rules,  it  is 
subject  to  exceptions,  was  held  by  the  Court  of  Appeals  of  Ken- 
tucky, in  sustaining  such  a  bill  by  a  creditor  at  large,  where  the 
debtor  resided  or  had  removed  out  of  the  State,  so  as  to  prevent  a 
judgment  being  obtained  against  him  at  law.^  And  so  in  Mis- 
Alabama,  606;  Conway  v.  Butclier,  8  from  the  want  of  jurisdiction  in  the  court 
rhiiailelpliia,  272;  Ozinore  t-.  Hood,  53  of  chancery  to  investigate  fraud;  but  it 
Georgia,  114;  Stevenson  v.  Prather,  24  results  from  tlie  circumstance  of  the  de- 
Louisiana  Annual,  434.  mand    which    constitutes    the    creditor, 

1  Lynch  v.  Crary,  52  New  York,  181.      being  cognizable  at  law,  and  tiie  neces- 

2  Bagley  v.  Ward,  37  California,  121.      sity  of  that  demand  being  established  hy 
»  Scott   V.    McMillen,    1    Littell,   302.     the    determination    of    a    court,    acting 

The  views  of  the  court  were  thus  ex-  within  its  legitimate  sphere;  and  when- 
pressed:  "Generally  speaking,  creditors  ever  the  demand  is  so  established,  the 
must  show  themselves  to  be  such,  by  court  of  chancery,  acting  within  the  ac- 
obtaining  judgment  at  law,  before  they  knovvledged  liiftts  of  its  jurisdiction, 
will  be  allowed  to  apply  to  a  court  of  will  search  out  the  fraud,  and  clear  away 
equity  to  investigate  any  fraud  alleged  all  obstructions  to  tiie  effectual  execution 
to  have  been  committed  by  their  debtor,  of  the  judgment  at  law. 
in  alienating  liis  pro|>erty.  The  neces-  "  Notwithstanding,  however,  it  may, 
sity  of  tlius  first  obtaining  judgment  at  in  the  general,  he  necessary  for  the  cred- 
law,  before  application  is  made  to  a  court  itor  to  establish  his  demand  at  law  before 
of   chancery,   does    not,   liowever,   arise  he  applies  to  a  court  of  chancery,  it  can- 

[183] 


§22^ 


EFFE'CT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAP.  VIII. 


souri,  where  the  debtor  had  absconded,  and  under  the  particular  cir- 
cumstances of  that  case,  the  law  afforded  no  remedy  by  attachment.^ 
In  several  States  the  attempt  has  been  made  to  establisli  an  ex- 
ception in  favor  of  attaching  creditors.  In  New  York,  before  the 
adoption  of  the  Code  of  Procedure,  and  v/hen  an  attachment 
operated  in  favor  of  all  the  creditors  of  the  defendant  who  should 
present  their  claims,  a  bill  in  favor  of  an  attaching  creditor  was 
sustained  by  the  Court  of  Chancery  ;  ^  but  in  other  cases,  since 
the  adoption  of  the  Code,  as  will  presently  appear,  the  contrary 
has  been  held.  In  Illinois  the  question  arose  where  no  property 
was  seized,  but  only  a  garnishee  summoned ;  and  the  court  held, 
that  the  garnishment  was  not  a  lien  on  the  effects  in  the  garnishee's 
hands,  and  therefore  would  not  sustain  the  bill.  The  decision, 
however,  did  not  rest  on  that  position  alone,  but  the  court  applied 


not  be  admitted  to  be  indispensable  in 
every  case.  Cases  may  occur,  and  tlie 
present  case  was  of  that  character  when 
the  bill  was  filed,  where,  from  the  absence 
of  tlie  debtor  from  the  country,  the  cred- 
itor would  not  be  enabled  to  establish 
his  demand  at  law.  At  common  law,  the 
creditor,  in  such  a  case,  might  perhaps 
establish  his  demand  at  law,  by  proceed- 
ing to  outlaw  the  defendant ;  but  in  this 
country,  after  a  return  of '  no  inhabitant' 
on  the  writ,  the  suit  is  directed  to  abate, 
and  after  an  abatement  there  can  be  no 
proceedings  to  outlawry.  Possessing, 
therefore,  no  means  of  establishing  his 
demand  at  law,  it  would  seem  the  cred- 
itor ought,  without  first  commencing 
an  action  at  law,  to  be  allowed  to  apply 
to  a  court  of  equity  for  relief.  It  is  not 
unusual  for  courts  of  equity  to  entertain 
jurisdiction  and  give  relief,  wherever  the 
principles  by  which  the  ordinary  courts 
are  guided  in  their  administration  of  jus- 
tice, give  right,  but  from  accident,  or 
fraud,  or  defect  in  their  mode  of  proceed- 
ing, those  courts  can  afford  no  reniedy, 
or  cannot  give  the  most  complete  remedy. 
It  is  upon  this  principle,  of  a  defect  in 
the  mode  of  proccedinji?  at  law,  that  the 
jurisdiction  of  many  causes  has  been 
translated  from  a  court  of  law  to  a  court 
of  chancery ;  and  if  such  a  defect  be 
sufficient  to  transfer  a  cause,  otherwise 
cognizable  at  law,  to  a  court  of  chancery, 
a  fortiori  should  it  be  sufficient  to  author- 
ize the  Chancellor  to  take  cognizance  of 

[184] 


a  case  involving  matter  properly  of  equi- 
table jurisdiction,  sooner  than  he  would 
have  done,  if  no  such  defect  in  the  pro- 
ceeilings  at  law  existed. 

"Fraud  is  properly  cognizable  in  a 
court  of  chancery,  as  well  as  in  a  court 
of  law,  and  although,  when  committed 
by  debtors  in  conveying  their  property 
to  the  prejudice  of  creditors,  the  Chan- 
cellor, in  ordinary  cases,  may  refuse  to 
inquire  into  the  fraud,  until  the  creditor, 
by  obtaining  judgment  at  law,  establishes 
the  justice  of  his  demand  ;  yet,  when  the 
debtor,  by  absenting  himself  from  the 
country,  renders  all  proceedings  at  law 
against  him  ineffectual,  the  Chancellor, 
regardless  of  his  practice  in  ordinary 
cases,  will  lay  hold  of  the  property  al- 
leged to  be  fraudulently  conveyed,  ex- 
amine the  fraud,  inquire  into  tlie  justice 
of  the  creditor's  demand,  and  finally,  by 
acting  on  the  tlm^ij,  grant  tiie  appropriate 
relief.  It  is  true,  according  to  the  ancient 
practice  in  chancery,  no  decree  could  be 
pronounced  against  a  defendant,  without 
tiie  personal  service  of  process ;  but  we 
have,  in  this  country,  a  statute  authoriz- 
ing, in  all  suits  in  chancery  against  absent 
defendants,  an  order  for  publication  ;  and 
the  publication,  when  made,  is,  for  all 
purposes  of  trial,  equivalent  to  the  per- 
sonal service  of  process." 

1  Pendleton  v.  Perkins,  49  Missouri, 
565. 

2  Falconer  v.  Freeman,  4  Sandford 
Ch'y,  5G5. 


CHAP.  VIII.]       EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.        §  22o 

the  general  rule,  as  above  stated  ;  which  would  have  been  equally 
adverse  to  the  proceeding  if  property  had  been  levied  on.i  In 
Missouri,  the  rule  was  applied,  where  attachments  Avere  levied  on 
goods  previously  taken  under  executions  issued  on  judgments 
confessed  by  the  defendants,  which  were  alleged  lb  be  fraudu- 
lent.2  In  Nebraska,  it  was  enforced,  where  an  attachment  was 
levied  on  real  estate,  and  the  attachment  plaintiff  sought  to  set 
aside  a  conveyance  of  the  land,  alleged  to  be  fraudulent.^  And 
so  in  Kansas,  where  personal  property  was  attached.*  On  the 
other  hand,  it  has  been  held  in  New  Hampshire,^  New  Jersey,^ 
Texas,'^  and  California,^  that  an  attachment  confers  a  lien,  in  virtue 
of  which  the  bill  may  be  maintained  ;  but,  in  the  last  named  State, 
that  the  lien  of  the  attachment  could  not  be  rendered  effectual 
for  the  purpose  of  impeaching  a  conveyance  alleged  to  be  fraudu- 
lent, until  judgment  should  have  been  obtained  in  the  attachment 
suit.9  Such  is  the  state  of  the  decisions  in  regard  to  the  specific 
recourse  through  a  creditor's  bill. 

But  the  matter  has,  substantially,  come  up  in  another  shape, 
with  other  results.  Attachments  are  often  levied  upon  goods 
found  in  the  possession  of  a  third  party,  claiming  title  to  them 
under  a  sale  or  assignment  from  the  defendant,  which  the  attach- 
ing creditor,  or  the  officer,  or  both  believe  to  be  fraudulent  and 
void  as  against  creditors.  If,  in  such  a  case,  the  creditor  may 
not,  in  virtue  of  his  attachment,  maintain  a  bill  to  set  aside  the 
sale  or  assignment,  must  the  attachment  therefore  be  fruitless  ? 
This  question  has  been  directly  presented  in  connection  with 
actions  b}'  the  vendee  or  assignee  against  the  officer  or  the  at- 
taching creditor,  either  for  trespass,  or  for  the  goods,  or  for  the 
value  thereof.  Against  the  right  of  the  officer  or  creditor  when 
so  sued,  to  set  up  the  fraudulent  character  of  the  sale  or  assign- 
ment as  a  defence,  the  same  ground  is  taken  as  against  the  right 
of  a  creditor  to  maintain  a  creditor's  bill,  namely,  that  the  credi- 
tor is  only  a  creditor  at  large  until  he  has  obtained  a  judgment. 

1  Bigelow  V.  Andress,  31  Illinois,  .S22.  ruling  Melville  v.  Brown,  1  Harrison,  363. 

2  Martin  v.  Midiacl,  23  Missouri,  50.  See  Williams  v.   Miclienor,  3  Stockton, 

3  Weil  V.  Lankins,  3  Nebraska,  384.  520 ;  Kobert  v.  Hodges,  16  New  Jersey, 
*  Tennent  i;.  Battey,  18  Kansas,  324.  Eq.,  2<)'J  ;  Curry  v.  Glass,  25  Ibid   108. 

5  Stone  V.  Anderson,  6   Foster,  506;         ^  Ward  r.  MeKenzie,  33  Texas,  297. 
Dodge  V.   Griswold,  8  New  Ilamp.  425;         ^  Heyneman   v.    Dannenbcrg,   6    Cali- 
Tappan  u.  Evans,   11   Ibid.  iJll ;  Sheafe     forniii,  .376 ;  Scales  y.  ScoU,  13  Ibid.  76. 
V.  Slieafe,  40  Ibid.  51(;.  See  Castle  v.  Bader,  23  Ibid.  75. 

«  Hunt  V.  Field,  1  Stockton,  36,  over-        9  McMinn  u.Whelan, 27  California,  300. 

[185] 


§  225         EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAP.  VIII. 

On  the  other  liand,  it  is  urg^ed  tliat  tlie  statute  rehitive  to  fraudu- 
lent conveyances  is  not  by  its  terms  confined  to  judgment  credit- 
ors ;  that  such  conveyances  are  void  as  to  all  creditors  who  elect 
to  treat  them  as  void  by  adopting  the  process  wliich  the  law 
provides  ;  th^t  attachment,  as  a  provisional  remedy,  is  one  of 
these,  the  command  of  which  is  the  same,  in  substance,  as  that 
of  an  execution  ;  and  that  a  levy  under  it  is  a  lien,  which  author- 
izes the  party  claiming  through  it  to  assail,  as  fraudulent,  transfers 
of  the  property  levied  on. 

On  the  question,  as  thus  presented,  it  was,  by  the  Supreme 
Court  of  New  York,  once  held  that  an  attaching  creditor,  with  no 
judgment  or  execution,  had  no  standing  in  court  which  would 
enable  him,  when  sued  for  the  value  of  attached  goods  by  an 
alleged  vendee  thereof,  to  impeach  and  litigate  the  bona  fides  of  a 
sale  of  the  goods,  which  had  been  consummated  by  transfer  and 
delivery  before  the  attachment  was  levied.^  And  this  ruling  was 
followed  in  a  case  where  an  attachment  was  levied  on  goods  pre- 
viously seized  under  execution  issued  upon  a  judgment  confessed 
by  the  defendant,  which  the  attaching  plaintiff  alleged  to  be 
fraudulent.2  But  the  ruling  in  the  first  case  was  expressly,  and 
in  the  second  case  substantially,  overruled  by  the  Court  of  Ap- 
peals of  that  State.^  And  in  a  subsequent  case,  where  a  sheriff 
was  sued  by  one  claiming  attached  property  under  an  assignment 
from  the  defendant,  which  the  sheriff  alleged  to  be  fraudulent,  as 
against  the  defendant's  creditors,  that  court  held,  that  an  attach- 
ment in  the  hands  of  an  officer  authorized  him  to  seize  any  prop- 
erty which  the  defendant  had  disposed  of  in  any  manner  with 
intent  to  defraud  his  creditors  ;  that  the  attaching  creditor  was 
not,  after  service  of  his  attachment,  to  be  deemed  a  mere  creditor 
at  large,  but  a  cieditor  having  a  specific  lien  upon  the  goods  at- 
tached ;  and  that  the  sheriff,  as  his  bailee,  had  a  like  lien,  and  had 
the  right  to  show  that  the  assignee's  title  was  fraudulent  as 
against  attaching  creditors.^  And  this  right  does  not  depend  on 
the  recovery  of  judgment  in  the  attachment  suit,  but  exists  au- 

1  Hall  V.  Stryker,  29  Barbour,  105;  Mott,  34  New  York,  253;  Jacobs  v. 
9  Abbott  Pract.  342.  Remsen,  12  Abbott  Praot.  390  ;  Sdilus- 

2  Bentleyy.  Goodwin,  15  AbboU  Pract.  sell  v.  Willet,  Ibid.  397;  Thayer  v.  Wil- 
82;  Brooks  v.  Stone,  19  Howard  Pract.  let,  5  Boswortii,  344;  9  Abbott  Pract. 
395.  325;    Kelly  v.  Lane.  28  Howard  Pract. 

3  Hall  V.  Stryker,  27  New  York,  596.        128  ;  42  Barbour,  594  ;  18  Abbott  Pract. 
<  Rinchey  v.  Stryker,  28  New  York,     229 ;    Mechanics'   &    Traders'    Bank    v. 

45  J  26  Howard  Pract.  75.     See  Frost  v,     Dakin,  33  Howard  Pract.  316. 
[186] 


CHAP.  VIII.]       EFFECT  AND  OFFICE  OF  AN  ATTACHMENT,         §  226 

terior  to  such  recovery.^  The  position  taken  by  the  New  York 
Court  of  Appeals  is  substantially  held  in  New  Hampshire,^  Con- 
necticut,^  and  Michigan.'^ 

In  view  of  these  New  York  decisions,  it  would  seem  that  the 
position  taken  by  Clerke,  J.,  of  the  Supreme  Court  of  that 
State,  was  justifiable,  when  he  said:  "Since  the  decision  in  Rin- 
chey  V.  Stryker,  I  consider  it  no  longer  an  open  question,  whether, 
when  an  attachment  is  issued  under  the  Code  of  Procedure,  the 
plaintiff  in  the  action  obtains  such  a  lien  on  the  property  attached 
as  will  entitle  him  to  the  intervention  of  the  equitable  jurisdiction 
of  the  court  to  remove  or  set  aside  all  fraudulent  claims  and 
transfers,  or  any  other  fraudulent  obstacles  in  the  way  of  the  re- 
ahzation  of  the  lien,  in  case  the  plaintiff  should  recover  a  judg- 
ment."^ But  such  was  not  the  view  of  the  Court  of  Appeals,  by 
which  it  is  still  held,  that  an  attaching  plaintiff  cannot,  on  the 
ground  of  his  attachment,  maintain  a  creditor's  bill.*^ 

In  connection  with  the  justification  by  an  officer  or  creditor  of 
an  attachment  of  goods  in  the  hands  of  a  third  person,  whose  pos- 
session and  title  are  alleged  by  the  former  to  be  fraudulent,  it  is 
important  to  note,  that  the  officer  or  creditor  must  not  rely 
merely  on  the  production  of  the  attachment,  but  must  go  fur- 
ther, and  prove  the  defendant's  indebtedness,  and  also  that  the 
attachment  was  regularly  issued.  A  failure  to  prove  either  of 
these  matters  will  be  fatal  to  the  defence.'^ 

§  226.  The  lien  of  an  attachment  extends  only  to  the  property 
which  has  been  actually  subjected  to  its  action.  It  cannot  con- 
structively reach  the  property  of  one  who  has  been  summoned  as 
garnishee.  Therefore,  where  one  who  had  been  so  summoned 
died,  pending  the  proceedings  against  him,  and  his  admiuistrator 
was  made  a  party  to  the  suit  as  his  representative,  and  judgment 
was  rendered  against  the  administrator,  on  account  of  a  debt  due 

i  Eincliey  v.  Stryker,  28  New  York,  5  Greenleaf  v.   Mumford,  30  Howard 

45;   26  Howard   Pract.   75;    Tliurber  v.  Pract.   30;    19   Abbott    Pract.    469;    42 

Blanck,  50  New  York,  80 ;  Kelly  v.  Lane,  Barbour,  594. 

28  Howard  Pract.  128;  42  Barbour,  594 ;  «  Lawrence   v.   Bank,  35  New  York, 

18  Abbott  Pract.  229.  320;    Tliurber  v.   Blanck,    5a   Ibid.   80. 

■''  Angler  v.  Asli,  6  Foster,  99.  See   Keubens   v.   Joel,    3    Kernan,   488 ; 

3  Owen  V.  Dixon,  17  Conn.  492  ;  Peck  Mills  v.  Block,  30  Barbour,  549. 
v.Wliiting.21Ibid.  206;  Potter  i;.  Mather,  7  N„i,le  r.  Holmes,  5  Hill  (N.  Y.),194; 

24  Ibid.  551.  "Van  Etten  v.  Hurst,  0  Ibid.  311 ;  Thorn- 

*  Dixon  V.  Hill,  5  Michigan,  404.  burgh  v.  Hand,  7  California.  554. 

[187] 


§  227  a   EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAP.  VIII. 

from  the  intestiite  to  the  attachment  defendant ;  it  was  held,  that 
this  judgment  was  not  entitled  to  piiorit}^  over  any  other  debts  of 
the  intestate,  as  the  attachment  was  no  lien  upon  his  effects,  and 
the  plaintiff  could  acquire  no  greater  interest  under  the  attach- 
ment proceedings,  in  the  debt  of  the  garnishee  to  the  defendant, 
than  the  defendant  himself  would  have  had  if  no  attachment  had 
been  made.^ 

§  227.  The  lien  of  an  attachment  is  not  limited  to  the  amount 
for  which  the  writ  commands  the  officer  to  attach ;  but  is  com- 
mensurate with  the  amount  of  the  judgment  and  costs,  though 
tliat  be  greater  than  the  sum  which  the  precept  of  the  writ  re- 
quired the  officer  to  secure.^  But  this  is  not  to  be  understood  as 
authorizing  a  judgment  in  the  attachment  suit  for  any  other  cause 
of  action  than  that  for  which  the  attachment  was  issued.  If  the 
plaintiff  take  judgment  for  more  than  was  then  due  him,  with 
interest,  he  cannot,  as  against  other  attaching  creditors,  sustain 
his  attachment  for  the  excess.  Thus,  where  a  debt  was  payable 
by  instalments,  one  falling  due  in  May,  and  one  in  September ; 
and  in  the  intervening  July  an  attachment  was  sued  out  on  that 
which  matured  in  JNIay ;  and  in  the  following  December  the  plain- 
tiff took  judgment  for  both  instalments;  it  was  held,  that,  as  against 
a  junior  attacher,  he  could  hold  only  the  amount  of  the  May  in- 
stalment, with  interest.^ 

§  227  a.  The  judgment  which  the  attached  propert}j  must 
answer,  is  that  which  the  plaintiff  may  ultimately  recover,  and 
not  merely  that  which  he  may  in  the  first  instance  obtain.  Hence, 
if  the  judgment  in  the  court  in  which  the  attachment  suit  was 
instituted  be  for  only  a  part  of  the  plaintiff's  claim,  and  lie 
appeal  therefrom,  the  defendant  is  not  entitled,  pending  the 
appeal,  to  have  the  attachment  discharged  on  payment  of  the 
part  awarded  him.* 

1  Parker    v.   Farr,    2    Browne,    331 ;  hardly  have   hesitated   to  sustain   it,  as 

Parker  v.  Parker,  2  Hill  Cli'y,  35.  was  done  in  a  similar  case  in  Michigan. 

■^  Searle  v.  Preston,  33  Maine,  214.  Hale    v.    Chandler,     3    Michigan,     531. 

3  Syracuse   City  Bank  v.  Coville,  19  Such    a    ruling   would   have   been  fully 

Howard  Pract.  385.     The  question  does  upheld   by  the  cases  cited,  post,  §  282. 

not  appear  to  have  been  raised,  whether  And  see  Tunnison  v.  Field,  21  Illinois, 

the   taking   of  the   judgment   for    more  108;  Austin  f.  Burgett,  10  Iowa,  302. 

than   was  sued  for  did  not  wholly  dis-  *  Wright  v.  Rowland,  4  Abbott  Ct.  of 

solve  the  attachment  as  to   subsequent  Ajjpeals,  Gl'J. 
attachers.     Had  it  been,  the  court  would 
[188] 


CHAP.  VIII.]      EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.        §  229 

§  228.  As  the  whole  office  of  an  attachment  is  to  seize  and  hold 
property  until  it  can  be  subjected  to  execution,  its  lien  is  barren 
of  any  beneficial  results  to  the  plaintiif,  unless  he  obtain  judg- 
ment against  the  defendant,  and  proceed  to  subject  the  property 
to  execution.  A  judgment  for  the  defendant,  therefore,  destroys 
the  lien,  and  remits  the  parties  to  their  respective  positions  before 
the  attachment  was  levied.^ 

§  229.  An  attachment  takes  precedence  of  a  junior  execution  ;2 
and  a  purchaser  of  land  under  an  attachment  will  prevail  against 
a  purchaser  under  a  judgment  obtained  after  the  levy  of  the 
attachment,  though  the  judgment  in  the  attachment  suit  was 
subsequent  to  the  other.^  The  strength  of  this  doctrine  was 
illustrated  in  a  case  in  Pennsylvania,  under  a  statute  which  de- 
clared that  "every  writ  of  attachment  executed  on  real  estate 
shall  bind  the  same  against  purchasers  and  mortgagees.''''  On  the 
18th  of  January,  1847,  an  attachment  was  executed  on  real 
estate.  In  November,  1818,  judgment  was  obtained  in  the 
action.  In  the  mean  time,  several  other  creditors  of  the  defend- 
ant sued  out  attachments,  and  caused  them  to  be  executed  on 
the  same  real  estate ;  and  in  all  those  cases  the  defendant  con- 
fessed judgments  in  April,  May,  and  June,  1848.  The  plaintiffs 
in  these  judgments  claimed  priority  of  the  first  attaching  creditor, 
because,  though  their  attachments  were  later  than  his,  their 
judgments  were  earlier  ;  and  it  was  contended,  on  their  behalf, 
that  the  lien  of  the  first  attachment  bound  the  property  only  as 
against  subsequent  purchasers  and  mortgagees ;  but  it  was  held, 
that  though  a  judgment  creditor  was  neither  a  purchaser  nor  a 
mortgagee,  and  therefore  not  within  the  letter  of  the  law,  yet  he 
was  within  its  equity;  and  the  priority  of  the  first  attachment 
was  sustained.*     And  so,  where  mortgages  of  personalty  are,  by 

1  Clapp  v.  Bell,  4  Mass.  99;  Jolinson  ley  v.  Waflman,   1    Houston,   350;  Hus- 

V.   Edson,   2   Aikens,   '2!t9  ;    Suydani    v.  bands  v.  Jones,  9  Bush,  218. 
Hugiieford,  23  Pick.  4(>5 ;  Hale  v.  Cum-  ^  Redus  v.  Wofford,  4  Smedes  &  Mar- 

minK's,  3  Alabama,  398;  Lamb  v.  Bolden,  shall,  579  ;  American  Ex.  Bank  v.  Morris 

lij  Arkansas,  539  ;  O'Connor  v.  Blake,  29  C.  &  B.  Co.,  6  Hill  (N.  Y.),  3U2 ;  Martin 

California,  312.  v.   Dry  den,  6   Illinois    (1    Oilman),   1»7; 

■^  Goore  v.  McDaniel,  1  McCord,  480  ;  Baldwin  ;•.  Leftwich,  12  Alabama,  838; 

Van   Loan   v.   Kline,    10  Johnson,    129;  Tappan  i-.  Harrison,  2  Humphreys,  172; 

Lummis   v.    Boon,   2    JV-nninfrton,    7;!4 ;  Oldham  u.  Scrivener,  3  B.  Monroe,  579. 
Pond  V.  Griffin,   1   Alabama,  678;  Beck  <  Schacklett    &    Clyde's    Appeal,    14 

V.  Brady,  7  Louisiana  Annual,  1  ;  Harbi-  Penn.  State,  326. 
son  V.   McCartney,  1  Grant,  172  ;  Stock- 

[189] 


§  280        EFFECT  AND  OFFICE  OF  AN  ATTACHMENT.       [CHAP.  VTII. 

law,  declared  inoperative  against  creditors  and  purchasers  with- 
out notice,  until  recorded,  the  levy  of  an  attachment  confers  a 
claim  su[)erior  to  that  of  an  unrecorded  mortgage.^ 


§  230.  An  altacliment  in  the  hands  of  one  officer,  levied  on 
personal  property-,  will  take  precedence  of  a  senior  execution,  in 
the  hands  of  another  officer,  who  has  not  effected  a  levy.^  Thus, 
where  a  constable  seized  certain  propert}^  under  an  attachment 
for  a  sum  exceeding  fifty  dollars,  issued  by  a  justice  of  the  peace, 
and  the  law  required  that,  in  such  a  case,  he  should  deliver  the 
property  to  the  sheriff,  to  be  sold,  if  required  to  satisfy  the 
attachment,  which  was  done ;  and  the  sheriff,  instead  of  holding 
the  property  subject  to  the  attachment,  levied  on  it  an  execution 
that  was  in  his  hands  before  the  attachment  was  levied ;  this  was 
held  a  wrongful  act,  which  would  enable  the  constable  to  main- 
tain replevin  against  the  sheriff  for  the  property.^ 


1  Hardaway  v.  Semmes,  38  Alabama, 
657. 

2  Field  V.  Milburn,  9  Missouri,  492. 

3  Bourne  v.  llocker,  11  B.  Monroe,  23. 
The  following  are  the  views  of  the  court : 
"  The  question  in  this  case  depends  upon 
the  question  whether  the  levy  of  the  at- 
tachment was  lawful  while  there  was  an 
unlevied  execution  in  the  hands  of  an- 
other officer.  For  if  a  constable  had  a 
right  to  levy  the  process  in  his  hands, 
we  do  not  perceive  how  the  sheriff  could 
rightfully  invade  the  possession  thus 
lawfully  acquired,  or  take  from  him  tiie 
property  which  lie  had  rightfully  taken 
for  the  purposes  of  the  writ  in  his  hands, 
and  which  by  his  seizure  was  placed 
properly  in  the  custody  of  the  law.  It 
is  to  prevent  such  an  invasion  of  posses- 
sion lawfully  acquired  under  legal  pro- 
cess, to  remove  all  ground  for  such  a 
struggle  between  independent  officers  of 
the  law,  and  to  avoid  occasion  for  conflict 
between  ditterent  authorities  or  tribunals 
competent  to  act  upon  the  same  party 
and  the  same  property,  that  the  law  has 
establisiied  tiie  principle  that  the  first 
e.xecution  of  the  process  in  the  hands  of 
distinct  officers  and  emanating  from  dis- 
tinct and  competent  autiiorities,  shall 
give  the  precedence.  The  fact  that  in 
the  case  of  executions  in  distinct  hands, 
the  priority  of  date  is  held  to  be  of  no 

[190] 


force  against  the  priority  of  actual  execu- 
tion, shows  that  the  principle  above  re- 
ferred to,  and  the  objects  to  be  secured 
by  it,  are  deemed  of  more  consequence 
than  the  preservation  or  existence  of  the 
lien  existing  by  delivery  of  the  writ,  but 
which  standing  by  itself  is  scarcely  mure 
than  nominal,  and  fades  into  nothing 
unless  followed  by  an  actual  legal  levy. 
An  attachment  is  as  imperative  in  requir- 
ing, and  as  efficacious  in  authorizing,  a 
seizure  of  the  defendant's  goods  as  a 
Jitri  facids.  And  if  tlie  lien,  whatever  it 
be,  of  the  senior  execution  leaves,  while 
it  is  unlevied,  such  property  or  right  in 
the  defendant  that  a  junior  execution  in 
distinct  hands  may  not  onlj'  be  levied  on 
it,  but  may  by  the  first  levy  appropriate 
the  property  to  itself,  to  the  exclusion 
of  the  senior  execution,  we  do  not  per- 
ceive on  what  ground  the  unlevied  exe- 
cution, or  any  lien  attaching  to  it,  can 
repel  an  attachment,  which  is  a  process 
of  equal  authority  with  itself.  True, 
the  attachment  gives  no  lien  before  it  is 
levied.  But  this  is  substantially  true 
with  respect  to  the  junior  execution,  as 
against  the  older  one  in  the  hands  of  the 
oflBcer.  And  it  is  also  substantially  true 
with  respect  to  the  older  one  itself,  as 
against  a  junior  execution  in  the  hands 
of  a  distinct  officer,  acting  under  a  dis- 
tinct authority.     For  to  say  that  as  be- 


CHAP.  VIII.]       EFFECT  AND  OFFICE  OF  AN  ATTACHMENT. 


231 


§  231.  Unless  otherwise  directed  by  statute,  attachments  take 
precedence,  and  are  entitled  to  satisfaction,  in  the  order,  in  point 
of  time,  of  their  service  ;i  and  if  the  proceeds  of  the  attached 
property  be  more  than  sufficient  to  satisfy  the  execution  of  the 
first  attacher,  the  surplus  is  applicable  to  the  claims  of  the  subse- 
quent attachments.^ 


tween  them  the  first  levy  gains  the  pre- 
cedence, is  to  say  tliat  as  between  them 
there  is  no  lien  until  there  is  a  levy.  It 
seems  impossible  to  trace  this  want  or 
annihilation  of  the  lien  of  each  as  against 
the  otlier  to  the  fact  that  each  would 
have  a  lien  but  for  the  other,  or  that 
each  has  a  lien  except  as  against  the 
other.  If  the  lien  arising  from  the  right 
to  levy  were  to  be  regarded,  the  execu- 
tion first  in  hand  must  prevail.  Tlie 
true  ground  and  principle  of  the  rule 
applicable  to  the  case  seems  to  be,  that 
the  process  in  the  hands  of  each  officer 
being  equally  authoritative  and  equally 
imperative  in  its  requisition  to  seize  the 
property  of  the  defendant,  and  each 
officer  being  independent  of  the  other, 
each  has  a  right  and  is  bound  to  execute 
the  process  in  his  hands  as  speedily  and 
as  effectually  as  he  can,  and  tliat  the  right 
and  authority  of  eacli  being  equal,  either 
may  rightfully  act  witliout  yielding  to 
the  mere  authority  of  the  other  to  act; 
but  that  when  either  has  acted  under  the 
mandate  of  iiis  process,  and  has  by  seizure 
acquired  the  possession,  and  placed  the 


property  in  the  custody  or  under  the 
authority  of  the  law,  the  otlier  is  l)ound 
to  respect  this  possession  and  custody. 
And  he  cannot  afterwards  take  the  prop- 
erty, because  it  is  no  longer  in  the  pos- 
session or  power  of  the  defendant,  but 
has  already  been  taken  by  competent 
authority,  and  is  under  the  power  and 
protection  of  the  law,  and  because  his 
subsequent  seizure  of  it,  while  in  the 
lawful  possession  of  the  first  taker,  would 
be  a  trespass  which  he  is  not  authorized 
to  commit.  A  possession  derived  from 
the  act  of  the  defendant  is  of  course  not 
thus  protected." 

I  Robertson    v.   Forrest,    2    Brevard, 
466 ;  Crowninshield  v.  Strobel,  Ibid.  80 
Emerson  i".  Fox,  3  Louisiana,  183  ;  Atlas 
Bank   v.    Nahant   Bank,   28    Pick.   488 
Wallace  v.  Forrest,  2  Harris  &  JlcHenry 
261  ;    Talbot   v.    Harding,    10    Missouri 
350 ;  Farmers'  Bank  v.  Day,  6  Grattan 
360;  Greenleaf  v.  Mumford,  30  Howard 
Bract.  30;  19  Abbott  Pract.  469. 

•^  Wehle  V.  Butler,  35  New  York  Su- 
perior Court,  215. 

[191] 


§  234  ATTACHMENT   OF   REAL   ESTATE.  [CHAP.  IX. 


CHAPTER     IX. 


ATTACHMENT   OF   REAL   ESTATE. 


§  232,  It  would  be  inconsistent  Avitli  the  scope  and  design  of 
this  work  to  set  forth  the  law  of  each  State  as  to  the  interests  in 
real  estate  which  are  subject  to  attachment.  It  may  be  stated, 
however,  that  the  general  principle,  which  confines  the  right  of 
attachment  of  tangible  property  to  such  interests  therein,  or  de- 
scriptions thereof,  as  can  be  sold,  or  otherwise  made  available, 
under  execution,  to  satisfy  the  plaintiff's  demand,  applies  as  well 
to  real  as  personal  property. 

§  233.  Whether  real  estate  can  be  attached,  when  the  defend- 
ant has  sufficient  personal  pro]3erty,  accessible  to  the  officer,  out 
of  which  to  make  the  debt,  must,  in  like  manner,  depend  on  the 
statutes  of  each  State,  and  the  terms  of  the  writ  under  which  the 
officer  acts.  It  may  be  considered  a  sound  doctrine,  that,  in 
the  absence  of  any  positive  limitation  of  the  right  of  attachment, 
real  estate  may  be  as  well  attached  as  personalty  ;  and  that  the 
existence  within  the  knowledge  of  the  officer  of  a  sufficiency  of 
the  latter,  which  he  might  seize,  will  not  invalidate  an  attach- 
ment of  the  former.  This  was  so  held,  where  the  statute  directed 
attachments  to  be  served  by  attaching  the  goods  or  chattels  of 
the  defendant,  or  if  none  could  be  found,  by  attaching  his  per- 
son or  land.^ 

§  234.  Another  established  principle  affects  with  peculiar  fit- 
ness attachments  of  real  estate,  —  that  the  attachment  can  operate 
only  upon  the  right  of  the  defendant  existing  tvhen  it  is  made. 
If,  prior  to  tlie  attachment,  he  had  sold  and  conveyed  the  land, 
in  good  faith,  but  the  vendee  did  not  put  the  deed  on  record  un- 
til afterward,  but  did  so  before  a  sale  of  the  land  under  execu- 

1  Isliam  V.  Downer,  8  Conn.  282;  Weathers  v.  Mudd,  12  B.  Monroe,  112. 
[102] 


CHAP.  IX.]  ATTACHMENT   OP  REAL   ESTATE.  §  234 

tion,  it  cannot  be  held  for  the  debt  of  the  vendor.^  Nor,  on  the 
other  hand,  can  an}^  interest  which  the  defendant  subsequently 
acquires  be  reached  by  it.  This  principle  was  applied  in  the  fol- 
lowing case.  The  Commonwealth  of  Massachusetts,  in  1832, 
gave  a  bond  for  title  to  real  estate  to  P.,  and  in  August,  1836, 
executed  to  him  a  deed  in  pursuance  of  the  bond.  Prior  to  the 
last-named  date,  P.  conveyed  by  deed  of  warranty  an  interest  in 
the  lands,  to  parties  from  whom,  by  intermediate  conveyances, 
that  interest  came  to  be  vested  in  S.  In  1835,  S.  conveyed  by 
warranty  deed  to  C,  but  the  deed  was  not  recorded  till  1839.  In 
May,  1836,  that  interest  was  attached  as  the  property  of  S.,  and 
sold  in  1841,  under  the  execution  in  the  attachment  suit,  and 
bought  by  P.,  the  original  obligee  in  the  bond  from  Massachu- 
setts. The  question  of  title  came  up  in  a  suit  by  C.  against  P. 
for  a  proportionate  part  of  the  value  of  timber  cut  by  the  latter 
from  the  land.  On  behalf  of  C.  it  was  claimed,  that  the  title 
made  by  Massachusetts  in  18o6,  enured  to  C.'s  benefit,  b}'  virtue 
of  the  various  conveyances,  with  warranty,  beginning  with  that 
from  P.  and  ending  with  that  from  S.  to  C.  On  the  other  hand, 
it  was  urged  in  support  of  P.'s  title  that  the  attachment  through 
which  he  claimed,  having  been  laid  on  the  land  before  the  deed 
from  S.  to  C.  was  recorded,  and  therefore  before  it  could  take 
effect  against  the  attachment  plaintiffs,  by  its  registry,  gave  to 
the  attachment  plaintiffs  the  same  title  which  would  have  enured 
to  them,  by  the  doctrine  of  estoppel,  if  they  had  held  under  a 
deed  with  covenants  of  warranty  recorded  at  the  time  of  the  at- 
tachment, and  that  their  right  passed  to  P.  This  claim  on  behalf 
of  P.  was  repudiated  by  the  court  in  these  terms :  "  The  purpose 
of  an  attachment  upon  mesne  process  is  simply  to  secure  to  the 
creditor  the  property  which  the  debtor  has  at  the  time  it  is  made, 
so  that  it  may  be  seized  and  levied  upon  in  satisfaction  of  the 
debt,  after  judgment  and  execution  may  be  obtained.  The  title 
to  the  property  remains  unchanged  by  the  attachment. 

"  An  attachment  can  operate  only  upon  the  right  of  the  debtor 
existing  at  the  time  it  is  made.  No  interest  subsequently  ac- 
quired by  the  debtor  can  in  any  manner  be  affected  by  the  return 
thereof,  when  none  was  in  him  at  the  time. 

1  Cox  V.  Milrier,  23  Illinois,  476  ;    Sa-     Oesclili,  49  Ibid.  244;  Plant  v.   Smythe, 
very  v.  Browning;,  18  Iowa,  240  ;  Keeil  v.     45  California,  161. 
Ownby,  44  Missouri,  2U4 ;  Sappington  v. 

13  [193] 


§  235  ATTACHMENT   OF   REAL   ESTATE.  [CHAP.  IX. 

"  We  have  been  directed  to  no  case,  and  it  is  believed  that 
none  can  be  found,  where  a  title  has  been  held  to  enure  to  a 
creditor  from  an  attachment  upon  a  writ  by  way  of  estoppel,  as 
from  a  deed,  with  covenants  of  warranty,  where  there  is  no  title 
of  the  debtor  upon  which  the  attachment  can  operate.  Upon 
the  principle  contended  for,  it  would  be  in  the  power  of  a  cred- 
itor, by  a  return  of  an  attachment  upon  mesne  process,  to  secure 
to  himself  any  interest  in  real  estate  which  his  debtor  might  ob- 
tain subsequently  thereto,  if  the  interest  should  be  attachable. 

"At  the  time  the  attachment  was  made,  S.  had  no  title  what- 
ever in  the  land,  nor  had  he  seisin  or  possession.  If  he  had 
made  no  conveyance  till  the  title  had  passed  from  the  Common- 
wealth of  INIassachusetts  to  P.,  the  attachment  would  be  entirely 
without  effect  against  him,  but  the  title  of  the  Commonwealth 
would  enure  to  his  benetit  alone.  The  levy  of  an  execution  at 
the  same  time  would  be  a  nullity,  and  the  return  of  full  satisfac- 
tion thereon  would  not  prevent  the  issue  of  a  new  execution 
upon  scire  facias.  When  the  lev}'  was  made  upon  the  execution 
obtained  from  the  judgment  recovered,  the  title  had  passed  from 
the  Commonwealth  of  Massachusetts  to  P.,  and  the  same  enured 
to  S.,  and  instantly  to  C."  ^ 

§  235.  The  question  has  frequently  arisen,  whether  a  mortgagee 
of  real  estate  has  an  attachable  interest  therein.  It  has  been 
held  in  several  States,  that,  before  an  entry  for  condition  broken, 
with  a  view  to  foreclosure,  such  interest  cannot  be  taken  in  sat- 
isfaction of  a  judgment  and  execution  against  him.  This  doc- 
trine has  been  so  frequently  discussed,  and  reaffirmed,  that  it 
may  be  considered  fully  established.  Whether  his  interest  is  so 
changed  by  such  entry,  that  it  becomes  attachable,  is  a  question 
which  does  not  appear  to  have  been  distinctly  presented  for  ad- 
judication, except  in  Maine.  In  several  opinions,  courts  had 
carefully  limited  the  doctrine  to  the  cases  before  them,  where 
there  had  been  no  entry  for  a  breach  of  the  condition,  or  where 
the  mortgagor  was  in  possession  ;  and  in  others,  they  intimated, 
in  terms  far  from  implying  doubts,  that  the  respective  rights  of 
the  parties  to  a  mortgage  were  not  materially  changed  by  the 
entry  of  the  mortgagee.  Before  the  Supreme  Court  of  Maine, 
however,  the  question  was  broadly  presented,  and  after  a  full  and 

^  Crocker  v.  Pierce,  31  Maine,  177. 
[194] 


CHAP.  IX.]      ATTACHMENT  OF  REAL  ESTATE. 


§235 


careful  examination,  it  was  decided  that  the  interest  of  a  mort- 
gagee cannot  be  attached  any  more  after  entry  than  before.^ 


i  Smith  I'.  People's  Bank,  24  Maine, 
185;  Lincoln  v.  Wliite,  30  Ibid.  2'Jl ; 
Thornton  v.  Wood,  42  Ibid.  282.  The 
views  of  tlie  court  were  tiius  expressed, 
in  the  tirst  of  tiiese  cases  :  "  The  result  is 
to  be  drawn  from  tlie  principles  which 
we  have  considered,  that  the  breach  of 
the  condition  in  a  mortgage  in  no  respect 
changes  the  nature  of  the  estate  in  the 
respective  parties.  Notwithstanding  such 
breach,  the  mortgagor  is  still  considered 
the  owner  against  all  but  the  mortgagee  ; 
he  may  sell  and  convey  the  fee ;  may 
lease  the  land,  if  in  possession ;  and  in 
every  respect  deal  with  it  as  his  own. 
The  equity  of  redemption  remams  little, 
if  at  ah,  artected  by  an  entry  of  the  mort- 
gagee, after  breach  of  the  condition;  the 
rights  of  the  mortgagor  are  not  es^entially 
impaired  till  foreclosure.  It  may  be 
taken  on  execution  against  the  owner 
and  disposed  of  as  well  after  as  before 
such  entry  ;  and  the  interest  acquired  by 
the  creditor  differs  in  no  respect  from 
that  whicii  he  would  have  obtained,  if 
made  betore  breach  of  condition.  The 
mortgagee,  by  his  entry,  acquires  no  ab- 
solute interest  presently,  which  he  would 
not  have  done  by  taking  possession  be- 
fore the  breacli  of  the  condition.  In  both 
cases  lie  would  hold  the  land  subject  to 
redemption,  and  be  obliged  to  account 
strictly  for  tlie  net  value  of  the  rents  and 
prollls ;  if  they  should  be  equal  to  the 
amount  of  tlie  debt  secured  by  tiie  mort- 
gage, before  the  expiration  of  the  time 
necessary  to  work  a  foreclosure,  the 
mortgage  would  be  discharged  thereby  as 
effectually  as  by  any  other  mode  of  pay- 
ment. Ill  the  view  of  a  court  of  equity, 
the  rents  and  prortts  are  incidents  de  jure 
to  the  ownership  of  the  equity  of  re- 
demption. In  no  sense  can  they  be  the 
property  of  the  mortgagee,  till  foreclo- 
sure. He  surrenders  no  rights  which  he 
before  possessed  by  tlie  entry.  In  the 
language  of  Chief  Justice  biiAvv,  in  Fay 
V.  Ciieiiey,  14  Pick.  '6J\),  '  tlie  entry  does 
little  or  nothing  to  change  the  relative 
rights  of  the  parties.  It  lixes  the  com- 
nieiicement  of  three  years,  the  lapse  of 
which,  by  force  of  law,  if  the  estate  be 
not  redeemed,   will  work  a  foreclosure.' 


Until  that  takes  place,  the  mortgage  is, 
as  before,  a  security  for  the  debt,  and  re- 
mains the  personal  property  of  the  mort- 
gagee, passing  on  his  death  to  tlie  executor 
and  not  to  the  heir.  No  new  projierty  is 
added  to  it  by  entry,  whicli  did  not  pre- 
viously belong  to  it,  so  as  to  make  it  liable 
for  the  debts  of  the  mortgagee.  All  the 
ditticulties  and  inconveniences,  which 
would  result  from  a  levy  of  an  execution 
upon  such  an  estate,  before  entry,  would 
exist  in  even  a  greater  degree  afterwards. 
In  addition  to  the  fact  that  an  execution 
might  require  but  a  small  part  of  the 
land  to  satisfy  it,  and  several  levies  might 
be  made  by  several  persons,  which  would 
be  an  embarrassment  to  the  mortgagor, 
or  his  representative,  if  they  should  wish 
to  redeem,  there  would  be  the  greater 
difficulty  arising  from  the  rents  and  prof- 
its for  the  value  of  which  the  latter  would 
be  entitled.  In  such  a  case,  who  would 
be  held  to  account  for  them,  a  part  hav- 
ing been  received  by  the  mortgagee,  and 
a  part  by  several  creditors,  who  might 
claim  to  succeed  to  his  right  as  tiie  mort- 
gagee ?  Against  whom  must  the  mortga- 
gor bring  his  bill  in  equity,  that  he  may 
be  restored  to  his  estate  i  Was  it  sup- 
posed that  by  the  acts  of  strangers  he 
should  be  turned  from  the  plain  and 
straight  course  of  seeking  his  equities 
from  the  mortgagee  and  his  assigns  ?  To 
whom  must  the  tender  be  made  to  entitle 
the  owner  of  the  equity  of  redemption  to 
the  rights  secured  to  him  by  law  .'  But 
a  ditiiculty  greater  than  inconveniences 
presents  itself  as  an  insurmountable  ob- 
stacle to  the  levy  upon  a  mortgagee's 
right  before  foreclosure.  The  mortgage 
is  a  '  pledge,'  '  a  c/iose  in  uciioii,'  '  an  acci- 
dent'  until  foreclosure.  Such  cannot  be 
taken  and  sold  on  execution,  unless  by 
express  statute  provision,  much  less,  if 
possible,  can  it  be  the  subject  of  levy  by 
a  set-otf  If  the  interest  of  a  mortgagee 
cannot  be  taken  in  satisfaction  of  an 
execution,  it  cannot  be  the  subject  of 
attachment  upon  mesne  process.  No 
attachment  can  be  made,  where  there  is 
no  right  of  the  debtor  which  is  attach- 
able."   See  Courtney  v.  Carr,  G  Iowa,  238. 

[195] 


§  237  ATTACHMENT   OF   EEAL   ESTATE.  [CHAP.  IX. 

§  236.  The  requisites  of  an  attachment  of  real  estate  are  gen- 
erally determined  by  statute.  Where,  however,  that  is  not  the 
case,  the  rule  Avhich  has  obtained  in  Maine,  Massachusetts,  New 
York,  and  Texas,  would  i:)robably  be  received  and  applied,  —  that 
it  is  not  necessary  for  the  officer  to  go  upon  the  land,  or  into  its 
vicinity,  or  to  see  it,  or  do  any  other  act  than  make  return  ujdou 
the  writ  that  he  has  attached  it.^  He  has  no  right  to  take  actual 
exclusive  possession  of  the  property,  or  in  any  way  to  disturb  the 
possession  of  the  occupants.^ 

§  237.  In  making  such  return,  a  distinction  is  taken  between 
the  levy  of  an  attachment,  which  is  a  mere  lien  on  the  property, 
and  the  levy  of  an  execution,  by  which,  when  carried  to  a  sale, 
the  defendant's  property  is  devested.  In  the  latter  case  greater 
precision  is  required  than  in  the  former.  Hence  it  has  been  con- 
sidered, in  the  case  of  an  attachment,  that  any  words  which 
clearly  designate  and  comprehend  the  property  attached,  are  suffi- 
cient.^ In  such  case,  too,  the  generality  of  the  description  makes 
no  difference,  if  it  be  sufficient!}'  intelHgible  to  fix  the  lien  of  the 
process.  Id  certnm  est  quod  certuni  reddi  potest,  and  therefore,  if 
the  land  be  at  all  intelligibly  indicated,  the  application  of  this 
principle  will  remove  objections  that  might  exist  on  the  score  of 
imperfection  in  the  description.^  It  has,  therefore,  been  held, 
that  a  return  of  an  attachment  of  the  defendant's  interest  in  the 
farm  he  lives  on  is  sufficient.^  So,  an  attachment  of  all  the  de- 
fendant's interest  in  "a  certain  parcel  of  land  situate  on  Pleasant 
Street  in  Boston,"  will  suffice,  if  the  defendant  was  interested  in 
only  one  parcel  on  that  street.^  And  where  an  officer  returned 
that  he  had  "attached  the  homestead  farm  of  the  defendant,  con- 
taining about  thirty  acres,  more  or  less ; "  tliis  was  held  a  suffi- 
cient description  of  the  farm,  althougli  in  fact  it  contained  about 
150  acres  ;  the  statement  of  the  number  of  acres  being  rejected 
as  a  mistake  in  the  officer,  or  as  repugnant  to  the  more  general 
description."     In  Massachusetts,^  it  was  held  that  an  attachment 

1  Crosby  v.  Allyn,  5  Maine,  453;  Per-  »  Taylor  v.  Mixter,  11  Pick.  E41. 

rin  V.  Leverett,   13  Mass.  128;  Taylor  v.  *  Crosby  v.  Allyn,  5  Maine,  453. 

Mixter,  11  Pick.  341 ;  Burkliardt  v.  Mc-  ^  Howard  v.   Daniels,    2  New  Hamp. 

Clfllan,    15  Abbott  Pract.  218,   note;    1  137;  Taylor  u.  Mixter,  11  Pick.  341. 

Abbott  Ct    of  Appeals,  263 ;  Rodgers  v.  «  Whitaker    v.  Sumner,  9  Pick.  308. 

Bonner,  55  Barbour,  0;  Hancock  v.  Hen-  See  Lanibard  v.  Pike,  33  Maine,  141. 

derson,  45  Texas,  479.  1  Bacon  v.  Leonard,  4  Pick.  277. 

^  Wood  V.  Weir,  5  B.  Monroe,  644.  8  pratt  v.  Wheeler,  6  Gray,  620. 
[196] 


CHAP.  IX.]  ATTACHMENT   OF   REAL   ESTATE. 


239 


of  "  all  the  defendant's  interest  in  any  real  estate  in  the  county 
of  W."  was  sufficient;  and  so  in  that  State ^  and  New  Hamp- 
shire ^  of  an  attachment  of  the  defendant's  "  right  and  interest  in 
any  lands  in  the  town  of  E."  But  in  Maine,  such  a  return  is 
considered  void  for  uncertainty.^  And  so,  of  an  attachment  of  a 
defendant's  "life-estate  in  all  the  lands  got  by  his  wife,  supposed 
to  be  450  acres."  *  And  so,  of  an  attachment  of  "  one  half  of  lot 
60,"  without  designating  which  half.^  And  so,  of  an  attachment 
of  "lot  No.  5  in  block  No.  12." « 

In  Missouri  this  case  occurred.  An  attachment  was  levied 
upon  the  undivided  interest  of  the  defendant  in  "the  south  half 
of  the  south-east  quarter  of  section  17,  T.  57,  R.  35,  containing 
eighty  acres."  This  property  had,  prior  to  the  attachment,  been 
subdivided  by  the  owners  into  blocks  and  lots,  with  streets  dedi- 
cated to  public  use  separating  the  blocks,  and  some  of  the  lots 
had  be«n  sold  to  third  persons,  and  were  occupied  by  them. 
Judgment  and  execution  were  obtained  in  the  attachment  suit, 
and  the  sheriff  proceeded  to  sell  a  number  of  the  lots  laid  out  in 
the  property  described  in  the  levy  of  the  attachment.  The  pur- 
chasers claimed  that  they  had  acquired  the  defendant's  undivided 
interest  in  these  lots ;  but  it  was  held,  that  the  original  levy  was 
void  for  uncertainty,  and  that  it  should  have  described  the  prop- 
erty levied  on  with  as  much  certainty  as  a  sheriff's  deed.'' 

§  238.  Is  it  necessary  to  the  validity  of  an  attachment  of  real 
estate,  with  reference  to  the  title  acquired  through  the  attach- 
ment proceedings,  that  the  return  should  state  the  property  to  be 
the  defendant's?  In  the  light  of  the  authorities  cited  in  a  previous 
chapter,^  it  would  seem  that  this  question  should  be  answered  in 
the  negative. 

§  239.  The  effect  of  an  attachment  of  real  estate  is  to  give  the 
plaintiff  a  lien  upon  the  property  from  the  date  of  tlie  service  of 
the  writ.  By  the  act  of  attaching,  no  estate  passes  to  tlie  plain- 
tiff,^ or  to  the  attaching  officer ;  i*^  nor  is  the  interest  or  the  posses- 

1  Taylor  v.  Mixter,  11  Pick.  .341.  «  Meuley  v.  Zeigler,  23  Texas,  88. 

2  Moore  y.  Kidder,  55  New  Hamp.488.  ''  Henry  v.  Mitcliell,  '62  Missouri,  512. 

3  Hatliaway    v.  Larrabee,  27  Maine,  ^  Ante,  §  207. 

449.  «  Lyon  v.  Sanford,  5  Conn.  544. 

*  Fitzhugh  V.  Hellen,  3  Harris  &  John-  '"  Scott  v.  Manchester  Print  Works,  44 
son,  206.  New  Hamp.  507. 

*  Porter  v.  Byrne,  10  Indiana,  14G. 

[197] 


§  241  ATTACHMENT   OF   REAL   ESTATE.  [CHAP.  IX. 

sion  of  the  (lefeiidaiit  devested  ;  nor  does  the  officer  or  tlie  plaintiff 
acquire  any  right  of  possession,  or  riglit  to  take  tlie  issues  or 
profits.  It  merel_y  constitutes  a  lien,  which  can  be  made  avail- 
able to  the  plaintiff  only  upon  condition  that  he  recover  a  judg- 
ment in  the  suit,  and  proceed  according  to  the  existing  law  to 
subject  the  property  to  sale  under  execution.^  And  this  lien  has 
been  held  to  be  as  specific  as  if  acquired  by  the  voluntary  act  of 
the  debtor,  and  to  stand  on  as  high  equitable  ground  as  a  mort- 
gage.'^ And  where  a  debtor's  equity  of  redemption  of  mortgaged 
land  was  attached,  it  was  decided,  that  the  attachment  created  a 
lien  which  entitled  the  plaintiff  to  redeem,  and  that  a  decree  of 
foreclosure,  on  a  bill  brought  after  the  service  of  the  attachment, 
did  not  affect  the  rights  of  the  attaching  creditor,  unless  he  were 
made  a  party  to  the  suit.^ 

§  240.  It  has  just  been  stated,  that  the  levy  of  an  attachment 
upon  real  estate  does  not  confer  upon  the  attaching  officer  any 
right  to  take  the  issues  and  profits  thereof.  It  may  be  added  that, 
unlike  the  case  of  a  levy  on  personalty,  he  acquires  no  lien  upon, 
or  special  property  in,  the  land.  He  is  not  required  or  authorized 
to  take  possession  of  it,  nor  in  any  event  is  he  accountable  for  it, 
or  for  its  rents,  issues,  or  profits.  His  agency  and  authority  are 
terminated  whenever  the  duties  are  performed  for  which  the  pro- 
cess was  put  into  his  hands.  The  lien  created  by  the  attachment, 
whatever  may  be  its  character,  is  in  the  attaching  creditor,  and. 
he  only  can  release  or  discharge  it.  Where,  therefore,  the  law 
required,  in  order  to  a  valid  attachment  of  real  estate,  that  a  copy 
of  the  writ,  with  the  officer's  return  thereon,  should  be  deposited 
in  the  office  of  the  town  clerk,  and  that  was  done ;  but  the  officer 
afterwards  Avithdrew  the  copy  from  the  town  clerk's  office,  and 
erased  his  return  therefrom,  and  substituted  a  return  of  an  attach- 
ment of  personalty  ;  it  was  held,  that  such  withdrawal  and  era- 
sure did  not  affect  the  plaintiff's  lien  on  the  property.'* 

§  241.    The  right  to  attach  real  estate  extends  as  well  to  undi- 

1  Taylor  I'.  Mixter,  11  Pick.  341 ;  Scott  confess   judgment,    execution     shall    be 

V.    Manchester   Print    Works,    44    New  stayed  for  one  year.     Ensworth  v.  King, 

Hanip.  507  ;  Saunders  v.  Columbus  L.  I.  50  Missouri,  477. 

Co.,  48  Mississippi,  583.     In  Missouri,  it  '^  Carter  v.  Champion,  8  Conn.  549. 

was  held,  that  tliis  lien  is  not  lost,  so  as  to  3  i_,yon    v.     Sanford,    5     Conn.    544; 

give  i)riority  to  a  junior  judgment,  by  an  Chandler  v.  Dyer,  37  Vermont,  345. 
agreement  between   the  attaching  plain-  *  Braley  v.  French,  28  Vermont,  540. 

tiff  and  defendant,  that  if  the  latter  will 

[198] 


CHAP.  IX.]  ATTACHMENT   OF   REAL   ESTATE.  §  242 

vided  interests  as  to  interests  in  severalty.  Therefore,  where  land 
descended  to  several  children,  who  made  partition  of  it  among 
themselves  by  deed,  and  a  creditor  of  one  of  the  children,  not 
having  either  actual  or  constructive  notice  of  the  partition,  at- 
tached all  his  debtor's  undivided  share  in  the  estate  ;  it  was  held, 
that  the  attacliment  created  a  lien  which  was  not  defeated  by  the 
partition. 1  And  where  an  attachment  was  levied  on  the  undivided 
interest  of  a  debtor  in  a  tract  of  land,  and  his  co-tenant  after- 
wards filed  a  petition  for  partition  and  obtained  it,  without  any 
notice,  actual  or  constructive,  to  the  attaching  creditor,  who  per- 
fected his  judgment,  obtained  execution,  and  levied  it  on  the 
debtor's  undivided  interest,  and  then  instituted  suit  for  a  par- 
tition ;  it  was  held,  that  the  first  partition,  pending  the  attach- 
ment, did  not  affect  the  rights  of  the  attaching  creditor,  and 
partition  was  decreed  in  his  favor.^  And  where  an  attachment 
was  laid  on  a  debtor's  undivided  interest  in  real  estate,  and, 
pending  the  attachment,  a  partition  of  the  land  was  had,  and  the 
debtor's  purparty  set  off  to  him  in  severalty,  and  the  execution 
in  the  attachment  suit  was  levied  on  the  part  so  set  off;  it  was 
decided  that  the  lien  of  the  attachment  continued,  notwithstand- 
ing the  partition,  and  that  the  execution  was  properly  levied  on 
the  several  property.^ 

§  242.  The  time  when  an  attachment  of  real  estate  is  actually 
effected  might,  in  many  instances,  be  of  much  importance.  It 
would  seem  to  be  an  undoubted  principle,  that  such  attachment 
would  have  no  force  until  completed  according  to  the  existing 
statutory  requirements.  This  view  is  sustained  by  a  case  in  New 
Hampshire,  which  arose  under  the  statute  of  that  State,  requiring 

1  McMeclian  v.  Griffinj;,  9  Pick.  -537.  ception  to  the  granting  of  the  same.   This 

'■*  Munroe  r.  Luke,  19  Pick.  39.    Shaw,  language  is  broad  enough  to  incUule  the 

0.  J.,    in  delivering  tlie  opinion  of  tlie  Hen  created  by  an  existing  attachment, 

court,  said :  "  The  main  argument  in  tlie  which,  though  a  contingent  interest,  is 

present  case  is,  that  the  petitioners  hav-  often  a  very  important  one,  and  e.xtends 

ing  only  an  attiiciiment  on  the  estate,  at  to  the  whole  value  of  the  estate.     And 

the   time  of  the  partition,  they  had   no  though  oidy  a  lien  when  the  action  is 

such  interest  or  estate  in  the  land  as  to  pending,  yet  when  judgment  is  rendered 

entitle  them  to  notice.     The  provision  of  and  execution  levied,  it  relates  back,  to 

the  statute  is,  that  the  court  shall  not  many  purposes,  to  the  time  of  the  attach- 

proceed  to  order  partition,  until  it  shall  ment,  and  especially  so  tiir  as  to  defeat 

appear  that  the  several  ])ersons  interested  an^'  j/if'.s^p  conveyances  or  incumbrances." 

have  been  <luly  notified  of  such  petition,  ^  Crosby  v.  Allyn,  5  Maine,  453 ;  Ar- 

by  personal  service  or  by  pitJilication,  and  gyle  v.  Dwinel,  29  Ibid.  29. 
have  had  ojiportunity  to  make  their  ex- 

[199] 


§242 


ATTACHMENT   OF  REAL   ESTATE.  [CHAP.  IX. 


a  copy  of  the  original  writ  and  return  to  be  left  with  tlie  town 
clerk,  in  order  to  constitute  an  attachment.  A.  conveyed  to  B. 
certain  real  estate  on  the  10th  of  INIaj^  and  the  deed  was  recorded 
on  the  13th  of  that  month.  On  the  11th  of  the  same  month  the 
premises  were  attached  under  a  writ  issued  against  A.,  and  on 
that  day  the  sheriff  left  with  the  town  clerk  a  copy  of  the  writ 
and  his  return  thereon.  Some  time  after  the  deed  from  A.  to  B. 
was  recorded,  the  officer  who  served  the  attachment  obtained 
access  to  the  files  of  the  town  clerk,  and,  without  the  knowledge 
of  either  party,  altered  the  copy  of  his  return  left  there,  and 
having  made  a  similar  alteration  in  his  return  upon  the  original 
writ,  caused  the  writ  to  be  returned.  It  was  upon  this  amended 
return  that  the  real  estate  was  afterwards  subjected  to  execution, 
and  the  purchaser  under  the  execution  was  brought  in  con- 
flict with  the  grantee  in  the  deed.  The  court  was  of  opinion 
that  no  valid  attachment  was  made  until  the  amended  copy  of  the 
return  was  left  with  the  town  clerk,  and  as  that  took  place  some 
time  after  the  deed  was  recorded,  the  grantee  in  the  deed  was 
entitled  to  hold  the  land.^ 


[200] 


1  Cogswell  V.  Mason,  9  New  Hamp.  48. 


CHAP.  X.]       ATTACHMENT   OF   PERSONAL   PROPEPvTY.  §  244  a 


CHAPTER    X. 

ATTACHMENT  OF  PERSONAL  PROPERTY. 

§  243.  Under  this  head  will  be  considered,  I.  What  interests 
in,  and  descriptions  of,  personal  property  may  be  attached  ;  and 
II.  The  requisites  of  a  valid  attachment  of  personalty. 

§  244.  I.  What  Interests  in,  and  Descriptions  of.  Personal 
Property  may  he  attached.  The  first  general  proposition  on  this 
point  is,  that  property  which  cannot  be  sold  under  execution 
cannot  be  attached.^  Of  course  the  correlative  follows,  that 
whatever  may  be  sold  under  execution  may  be  attached.^  Money 
may  be  attached  in  specie,^  and  may  be  taken  from  the  defend- 
ant's possession,  if  the  ofl&cer  can  take  it  without  violating  the 
defendant's  personal  security.'*  Bank-notes  also  may  be  at- 
tached,^ and  so,  it  is  said,  may  treasurj'^-notes  of  the  United 
States.^  Stock  in  a  corporation  cannot  be  attached  unless  au- 
thorized by  express  statute  ;  "*  and  in  any  State  where  such  at- 
tachment is  authorized,  the  authority  extends  only  to  the  stock 
of  corporations  existing  in  that  State,  and  not  to  that  of  corpo- 
rations in  other  States.^ 

§  244  a.  Property  exempt  by  law  from  execution  cannot  be 
attached,  unless  the  defendant  consent,  or  be  proceeded  against  as 
a  non-resident ;  ^  or,  as  held   in    Pennsylvania,  unless  he  shall 

1  Pierceu.  Jackson,  6  Mass.  242;  Parks  *  Spencer  v.  Blaisdell,  4  New  Hamp. 

V.  Cusliman,  9  Vermont,  320 ;    Halsey  v.  198. 

Whitney,  4  Mason,  206  ;  Davis  v.  Garret,  ^  State  v.  Lawson,  7  Arkansas,  391. 

3  Ireik'll,  459 ;  Nashville  Bank  v.  Rags-  ^  Haley    v.    Reid,    16    Georgia,   437  ; 

dale,  Peck,  296  ;  Myers  v.  Mott,  29  Cal-  Nashville  Bank  v.  Ragsdale,  Peck,  290  ; 

ifornia,  359.  Foster  v.  Potter,  37  Missouri,  525  ;  Howe 

'-s  Handy  v.   Dobbin,  12  Johnson,  220 ;  v.    Starkweather,    17    Mass.   240  ;    Mer- 

Spencer  v.  Blaisdell,  4  New  Hamp.  198  ;  chant's  M.  I.  Co.  v.  Brower,  38  Texas,  230. 

GoU  V.  Hinton,  7  Abbott  Pract.  120.  ^  Moore  v.  Gennett,  2  Tennessee  Ch'y, 

3  Turner  v.  Fendall,   1  Cranoh,  117  ;  375. 

Sheldon  v.  Root,  16  Pick.  567;  Handy  v.  ^  Yelverton  j».  Burton,  26  Penn.  State, 

Dobbin,  12  Jolinson,  220.  351 ;    McCarthy's  Appeal,  68  Ibid.  217  ; 

*  Prentiss  v.  Bliss,  4  Vermont,  513.  Board   of   Commissioners    v.    Riley,    75 

North  Carolina,  144. 

[201] 


§  244  a  ATTACHMENT  OF  PERSONAL  PEOPERTY.   [CHAP.  X. 

liave  friui(hilently  concealed  other  property  liable  to  attachment.^ 
This  rule  is  not,  however,  to  he  extended  heyond  its  terms,  as 
expressed.  If  the  party  who  might  avail  himself  of  the  exemp- 
tion, sell  tlie  exempted  property,  a  debt  due  him  therefor  may 
be  attached.2 

An  officer  levying  an  attachment  npon  property  exempt  from 
execntion  is  liable  to  the  defendant  as  a  trespasser,  if  he  know 
that  it  is  exempt.^  But  in  order  to  enforce  this  liability,  the  de- 
fendant, if  aware  of  the  levy,  must,  at  the  time,  claim  the  ex- 
emption, or  he  will  be  considered  to  consent  to  it.  Manifestly, 
he  cannot  set  up  such  a  claim  after  judgment  rendered  against 
him  in  the  attachment  suit.*  If  the  property  is  a  part  of  a  larger 
quantity  than  the  law  exempts,  the  defendant  must,  at  the  time, 
set  apart  such  portion  as  he  is  entitled  to  under  the  exemption, 
or  he  will  be  held  to  have  waived  his  right.^  And  if  the  debtor 
is  entitled  to  hold,  exempt  from  attachment,  one  or  the  other  of 
two  articles,  but  not  both,  he  must  make  his  election  when  the 
attachment  is  made,  if  he  have  the  opportunity  to  do  so,  or  he 
will  be  held  to  have  waived  his  privilege.^ 

In  an  action  against  the  attaching  officer  for  trespass  in  attach- 
ing exempt  property,  the  burden  of  proof  is  upon  the  plaintiff  to 
establish  the  actual  fact  of  exemption,  and  notice  thereof  to  the 
officer.  Thus,  where  groceries  and  provisions  were  attached, 
and  it  appeared  that  they  were  part  of  a  quantity  kept  by  the 
plaintiff  in  his  house,  both  for  sale  and  for  the  use  of  his  family  ; 
and  the  plaintiff  failed  to  prove  that  he  had  set  apart  or  claimed 
any  of  thera  as  exempt,  it  was  held,  that  he  could  not  make  the 
officer  liable.''^  So,  where  corn  was  attached,  which  was  part  of 
a  crop  raised  by  the  attachment  defendant,  of  which  he  had  sold 
a,  part,  and  with  a  part  fed  his  cattle  and  swine,  and  all  of  which 
was  kept  in  a  building  separate  from  his  dwelling,  without  any 
portion  being  set  apart  for  the  use  of  his  family  ;  it  was  held,  in 

1  Emerson  v.  Smith,  61   Penn.  State,  "  Scott  v.  Brigham,  27  Vermont,  561; 

90  ;  McCarthy's  Appeal,  68  Ibid.  217.   In  Knabb  v.  Drake,  23  Penn.  State,  489. 
Alabama  the  Supreme  Court  said:  "It  ^  Ante,  §  195. 

may   be    gravely   doubted    whether   the  *  State  v.  Manly,  15  Indiana,  8 ;  Per- 

law  of  exemption  of  this  State  can  be  in-  kins  v.  Bragg,  29  Ibid.  507. 
voked   in  favor  of  absconding    debtors,  ^  Nash   v.  Farrington,   4  Allen,   157 ; 

and  debtors  about  to  remove  out  of  this  Clapp  v.  Thomas,  5  Ibid.  158 ;  Smith  v. 

State."      McBrayer   v.  Dillard,   49   Ala-  Chadvvick,  51  Maine,  515. 
bama,  174.  ^  Colson  v.  Wilson,  58  Maine,  416. 

7  Nash  V.  Farrington,  4  Allen,  157. 

[202] 


CHAP.  X.]      ATTACHMENT   OF   PEESONAL   PROPERTY.  §  244  C 

an  action  for  trespass  against  the  officer,  that  the  plaintiff  must 
prove  the  corn  to  have  been  procured  and  intended  by  him  as 
provision  for  liis  family.^  So,  where  an  officer  attached  two  arti- 
cles of  household  furniture,  he  was  held  not  liable,  because  the 
plaintiff  did  not  prove  that  he  had  not  left  other  household 
furniture  sufficient  in  kind  and  value  to  make  up  the  amount 
exempted  by  law.^  So,  where  a  debtor  was  entitled  to  one  cow 
exempt  from  attachment,  and  an  officer  attached  a  cow  of  the 
debtor's,  and  was  sued  for  trespass ;  it  was  held  necessary  to  a 
recovery  for  the  plaintiff  to  show  that  the  cow  was  the  ouly  one 
he  owned.3  So,  Avhere  articles  of  furniture  were  attached,  it  was 
held  necessary,  in  order  to  charge  the  officer  as  a  trespasser,  for 
the  plaintiff  to  show  that  they  were  a  part  of  his  household  ef- 
fects, and  therefore  exempted  from  attachment.* 

§  244  h.  Property,  the  sale  of  which  is  penal,  cannot  be  at- 
tached. Where,  therefore,  the  sale  of  spirituous  liquors  was 
forbidden  by  law,  it  was  held,  that  they  could  not  be  attached, 
because  their  subsequent  sale  under  execution  would  be  illegal.^ 
And  where,  under  a  law  of  that  description,  liquors  were  deliv- 
ered to  a  railroad  company  for  transportation,  and  were  attached 
and  taken  from  it  in  a  suit  against  the  owner,  and  the  company 
was  sued  by  the  owner  for  failing  to  deliver  the  liquors  accord- 
ing to  the  contract ;  it  was  held,  that  the  attaching  officer  was  a 
trespasser  in  seizing  the  liquors,  and  that  the  company  was  liable, 
though  the  attachment  was  made  without  fraud  or  collusion  on 
its  part,  against  its  will,  and  with  no  knowledge  that  the  prop- 
erty attached  was  spirituous  liquor.^ 

§  244  c.  One  of  the  indications  of  the  tendency  to  extend  the 
operation  of  the  remedy  by  attachment  is  the  recent  adoption  in 
several  States  of  provisions  authorizing  the  seizure  of  evidences 
of  debt,  and  their  sale  under  execution.  In  New  York,  for  in- 
stance, the  words  "  personal  property,"  as  used  in  the  Code  of 
Procedure,    are  declared    to   include    "  money,   goods,   chattels, 

1  Clapp  V.  Thomas,  5  Allen,  158.  Sed  contra,  Howe  v.  Stewart,  40  Vermont, 

'i  Gay  V.  Soutli worth,  111!  Mass.  333.         145. 

8  Howard  v.  Farr,  18  New  IIiimp.457.  ^  Kjff  v.  Old   Colony,   &c.,  R.  R.  Co., 

^  Bourne  v.  Merritt,  22  Vermont,  42'.).     117  Mass.  5'Jl.     See  Ingalls  v.  Baker,  13 
*  Nichols  c.  Valentine,  3G  Maine,  322.     Allen,  44'J. 

[203] 


§  245       ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 

things  in  action,  and  evidences  of  debt."  Under  this  Code,  an 
attaclunent  was  obtained  against  a  raih'oad  company,  and  was 
attempted  to  be  levied  on  certain  bonds  made  by  the  company, 
which  had  never  been  negotiated,  but  were  deposited  with  a 
creditor  of  the  company,  as  colhiteral  security  for  moneys  ad- 
vanced. It  was  hekl,  that  they  were  not  tilings  in  action  or  evi- 
dences of  debt,  subject  to  levy,  as  no  purchaser  of  them  could 
acquire  any  right  to  enforce  them  against  the  company.^ 

In  Wisconsin,  under  a  statute  of  similar  character,  authorizing 
the  attachment  of  "  notes,  accounts,  and  other  evidences  of  debt," 
and  their  collection  by  the  sheriff,  it  was  held,  that  those  evi- 
dences of  debt  which  may  be  attached  by  seizure,  are  only  such 
as  are  complete  and  perfect  evidences  in  themselves  ;  and  it  was 
determined  that  account-books  were  no  such  evidence  ;  that  their 
seizure  did  not  vest  the  sheriff  with  an}^  right  to  collect  any  ac- 
count contained  in  them  ;  and  that  the  only  way  to  reach  an  in- 
debtedness of  such  character  was  by  garnishment  of  the  debtor  ; 
and  that  such  a  garnishment,  after  the  sheriffs  seizure,  would 
hold  the  debt.2 

§  245.  A  fundamental  principle  is,  that  an  attaching  creditor 
can  acquire  no  greater  right  in  attached  property  than  the  de- 
fendant had  at  the  time  of  the  attachment.  If,  therefore,  the 
projierty  be  in  such  a  situation  that  the  defendant  has  lost  his 
power  over  it,  or  has  not  yet  acquired  such  interest  in  or  power 
over  it  as  to  permit  him  to  dispose  of  it  adversely  to  others,  it 
cannot  be  attached  for  his  debt.^  Thus,  a  chattel  pawned  or 
mortgaged  is  not  attachable,  in  an  action  against  the  pawner  or 
mortgagor;^  and  the  pawnee  may  maintain  trespass  against  an 
oflEicer  attaching  it,  and  recover  the  whole  value  in  damages, 
though  it  was  pledged  for  less  ;  for  he  is  answerable  for  the  ex- 

1  Coddington  v.  Gilbert,  5  Duer,  72 ;  32  Iowa,  165 ;  Samuel  v.  Agnew,  80  Illi- 

2  Abbott  Praet.  242;  17  New  York,  489.  nois,  553. 

'-i  Hrower  y.  Smitli,  17  Wisconsin,  410.  ^  Badlam    v.    Tucker,    1    Pick.    389; 

3  Babcock  v.   Malbie,  7   Martin,  n.  s.  Holbrook  v.  Baker,  5  Maine,  309  ;  Thomp- 

139;  Hepp  v.  Glover,  15  Louisiana,  461 ;  son  v.  Stevens,  10  Ibid.  27;  Sargent  v. 

Powell  v.  Aiken,  18  Ibid.  321 ;  Deloach  Carr,  12  Ibid.  396  ;  Picquet  v.  Swan,  4 

V.   Jones,    Ibid.   447;  Urie  v.  Stevens,  2  Mason,  443;  Lyle  v.  Barker,  5  Binney, 

Robinson   (La.),  251;  Oliver  v.  Lake,  3  457;  Haven  v.  Low,  2  New   Hamp.  13; 

Louisiana    Annual,    78;    Steplienson    v.  Anderson  ;;.  Doak,  10  Iredell,  295 ;  Wil- 

Walden,  24  Iowa,  84 ;  Provis  v.  Clieves,  liams  v.  Whoples,  1   Head,  401 ;  Moore 

9  Rhode   Island,  53 ;  Manny  v.  Adams,  v.  Murdock,  26  California,  514. 
[204] 


CHAP.  X.]   ATTACH3IENT  OF  PERSONAL  PEOPERTY.       §  245 

cess  to  the  person  who  has  the  general  property .^  So,  goods 
ordered,  witli  authority  to  the  vendor  to  draw  upon  the  vendee 
for  the  price  thereof,  cannot  be  attached  for  the  debt  of  the  lat- 
ter, before  they  have  been  delivered  to  him,  if  he  failed  to  pay 
the  draft  drawn  upon  inm  according  to  its  terms.^  So,  goods 
upon  which  freight  is  due  cannot  be  attached,  without  paying 
the  freight  ;3  and  if  an  officer  pay  the  freight,  in  order  to  get  the 
goods  into  his  possession,  he  stands,  in  respect  to  the  lien  for  the 
freight,  in  the  place,  and  has  the  rights,  of  the  carrier.*  So, 
goods  manufactured  by  one  for  another  cannot  be  attached  in  an 
action  against  the  general  owner ;  for  the  manufacturer  has  a  lien 
on  them  for  his  w^ork  and  labor.^  Property  in  the  hands  of  a 
bailee  for  hire  cannot  be  attached  in  a  suit  against  the  bailor 
during  the  term  of  the  bailment.^  The  interest  of  a  lessee  of 
personalty  may  be  attached  and  sold  ;  ^  but  that  of  the  lessor 
thereof  cannot  be,  even  though  the  sale  of  it  by  the  sheriff  be 
with  a  reservation  of  the  lessee's  right  to  retain  possession  during 
the  continuance  of  the  term.^  And  where  a  statute  expressly 
authorized  the  attachment  of  the  lessor's  interest,  by  delivering 
to  the  lessee  a  true  and  attested  copy  of  the  process  upon  which 
the  property  is  attached,  with  the  return  of  the  officer  thereon, 
describing  the  property ;  Avhich  was  declared  to  have  the  same 
effect  as  though  the  property  was  taken  into  the  possession  of 
the  officer  ;  it  was  held,  that  the  attachment  could  be  made  in 
no  other  way  than  that  prescribed,  and  that  the  officer,  in  taking 
the  property  into  his  possession,  and  thereby  dispossessing  the 
lessee,  was  a  trespasser,  and  could  not  justify  under  the  writ.^ 

Where  property  has  been  consigned  to  a  factor,  entitled  to  a 
privilege  thereon,  so  that  the  consignor  or  owner  cannot  take  it 
out  of  his  hands  without  paying  his  claim,  a  creditor  of  the 
owner  cannot  attach  it.  In  such  a  case,  where  the  consignee  has 
made  acceptances  on  account  of  the  property,  a  creditor  of  the 
consignor,  wishing  to  take  the  property  out  of  the  hands  of  the 
consignee  without  paying  the  amount  of  his  acceptances,  must 
show  that  the  acceptances  were  not  made  in  good  faith,  and  that 

1  Lyle  V.  Barker,  5  Binncy,  457.  145 ;  Truslow  v.  Putnam,  4  Abbott  Ct.  of 

2  Sevmour  v.  Newton,  105  Mass.  272.       Appeals,  425. 

3  DeWolf  V.  Dearborn,  4  Pick.  4G6.  ^  Wheeler  v.  Train,  3  Pick.  255. 

*  Tliompson  v.  Rose,  16  Conn.  71.  *  Smith  ;;.  Niles,  20  Vermont,  ;315. 

5  Townsend  v.  Newell,  14  Pick.  332.  '•»  Brigiiam  v.  Avery,  48  Vermont,  602. 


6  Hartford  i;.  Jackson,  11  New  Hamp. 


[205] 


§  245  a  ATTACHMENT   OP    PERSONAL   PROPERTY.       [CHAP.  X. 

the  consignee  is  not  bound  to  pay  lliem.^  And  in  such  case  the 
factor  may  bring  replevin  for  the  property  ;  and  his  right  to  main- 
tain the  action  will  not  be  defeated  by  his  consenting  to  become 
keeper  of  the  goods  for  the  attaching  officer.^  So,  it  was  held  in 
South  Carolina,  that  a  foreign  ship  and  cargo  consigned  to  one 
in  that  State  could  not  be  attached  in  a  suit  against  tlie  owner; 
the  court  holding  that  the  consignee  has,  in  contemplation  of 
law,  a  qualified  propert}^  in  the  ship  and  cargo,  and  a  constructive 
possession,  the  moment  she  comes  into  23ort ;  and  fro»m  that  mo- 
ment has  the  direction  and  management  of  iier,  for  the  benefit  of 
all  concerned  ;  and  that  she  is  under  his  power  and  government, 
and  subject  to  his  orders,  and  he  may  therefore  be  considered  in 
law  as  in  possession  of  the  whole  property.  The  court  intimated 
that  the  proper  way  to  attach  the  propert}^  was  by  garnishment 
of  the  consignee.^ 

A  case  of  not  unfrequent  occurrence  is  that  of  goods  being  at- 
tached, where  the  vendor  of  them  to  the  defendant  is  entitled  to 
exercise  the  right  of  stoppage  m  transitu^  and  exercises  that 
right  while  the  attachment  is  pending.  In  such  case  the  princi- 
ple announced  at  the  opening  of  this  section  undoubtedly  applies, 
and  the  vendor  is  not  precluded  by  the  attachment  from  exer- 
cising his  right  of  stoppage,*  even  though  the  goods  may,  by 
order  of  the  court,  have  been  sold  ;  he  is  entitled  to  the  proceeds 
in  the  hands  of  the  court.'^ 

§  245  a.  The  point  of  time  at  which  one  so  far  loses  his  power 
over  personalty  which  he  has  agreed  to  sell  to  another,  as  that  it 
is  not  subject  to  attachment  for  his  debt,  is  a  matter  of  impor- 
tance, and  sometimes  of  difidculty.  The  general  principle  may  be 
stated  to  be,  that  that  act  which  changes  the  control  and  do- 
minion of  property',  after  an  agreement  for  a  sale,  —  that  which 
supersedes  the  power  and  control  of  the  vendor,  and  transfers  it 
to  the  vendee, — is  a  good  delivery  to  pass  the  property  to  the 
latter,  and  to  defeat  its  attachment  for  a  debt  of  the  former. 
Thus,  where  A.,  in  fulfilment  of  an  agreement  for  a  sale  to  B., 

1  Lambeth   v.    Turnbull,   5    Robinson  ^  Scliepler  l\   Garriscan,  '2  Bay,  224; 
(La.),  2G4;   Skillmaii  v.  lielbanj,  2  Mar-  Mitcliell  v.  Byrne,  0  liicharilsoii,  17L 
tin,  x.s.  1U4;  Brownell  v.  Carnley,  3  iJuer,  *   Uickuian  v.  Williams,  dO  Mississippi, 
9;  McNeill  v.  (iiass,  1  Martin,  n.  s.  26L  500;  Calahan  v.  Babcock,  21  Uiiio  Slate, 

2  Sevvall  V.  Is'icliolls,  34  Maine,  582;  281;  Lislee  v.  Lane,  57  New  Hainp.  454. 
Brownell  v.  Carnley,  3  Duer,  y.  ^  O'Brien  v.  Norris,  16  Maryland,  122. 


CHAP.  X.]       ATTACHMENT   OF   PERSONAL   PROPERTY.  §  246 

shipped  goods  at  Albany,  by  railroad,  to  be  forwarded  to  Boston, 
taking  a  receipt  or  way-bill,  making  them  deliverable  to  himself, 
and  enclosed  to  B.  a  written  order  making  them  deliverable  to 
B.,  who,  on  receipt  thereof,  notified  the  agent  of  the  railroad, 
and  at  the  same  time  paid  the  freight ;  it  was  held,  that  there 
was  a  sufficient  delivery  to  pass  the  property  from  A.  to  B., 
though  the  latter  had  not  reduced  it  to  actual  possession,  and 
that  it  could  not  be  attached  for  the  debt  of  A.,  either  while  m 
tj'ansitu  or  after  its  arrival  at  Boston.^ 

§  246.  The  foregoing  are  instances  in  which  the  owner  has  so 
far  lost  his  power  over  the  property  as  that  it  cannot  be  attached 
for  his  debt.  The  same  result  follows  in  relation  to  property,  in 
or  over  which  a  person  has  not  yet  acquired  such  interest  or 
power  as  is  considered  in  law  to  constitute  an  attachable  interest. 
Thus,  where  merchants  residing  in  the  city  of  New  York  received 
an  order  for  goods  from  persons  residing  at  a  distance,  without 
particular  directions  as  to  the  manner  in  which  the  goods  should 
be  forwarded ;  and  the  vendors  proceeded  to  select  the  goods 
ordered,  and  a  portion  of  them,  after  being  packed  in  boxes, 
were  placed  on  board  a  vessel  for  transportation,  the  cartman 
taking  from  the  master  of  the  vessel  receipts  for  each  load  ;  it 
was  held,  that  no  person  but  the  shipper  was  entitled  to  a  bill  of 
lading  ;  and  the  shipper,  being  also  the  holder  of  the  receipts,  might 
direct  to  whom  the  bill  of  lading  should  be  made  out,  and  until 
he  should  do  so,  the  right  of  possession  remained  in  himself; 
and,  therefore,  that  there  was  no  such  delivery  to  the  purchasers 
as  rendered  the  goods  liable  to  seizure  under  an  attachment 
against  them.^  So,  where  goods  are  shipped  to  a  factor  for  sale, 
to  liquidate  advances  made  by  him  to  the  shipper,  and  to  hold 
the  balance  subject  to  the  shipper's  control,  the  factor  acquires 
no  right  of  property  in  them  until  they  actually  come  into  his 
possession,  and  they  may  be  attached,  while  in  transitu^  as  tlie 
shipper's  property.^  So,  where  goods  were  ordered  from  a  mer- 
chant in  Boston  Ijy  a  merchant  in  New  York,  to  be  paid  for  "  on 
arrival ; "  and  on  their  arrival,  and  while  in  the  possession  of 
the  carrier,  and  unpaid  for,  they  were  attached  in  a  suit  against 

'  Hatch   V.   Baylcy,  12   Cusliing,  27 ;  2  Jones  v.  Bradner,  10  Barbour,  193 ; 

Ilatcli  V.  Lincoln,  Ibid.  31.  Scbolfield  v.  Bell,  14  Mass.  40. 

8  Dickman  v.  Williams,  49  Mississippi, 
600. 

[2J7] 


§  246       ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 

the  purchaser ;  it  was  held,  tliat  he  had  acquired  no  title  to 
them,  and  that  the  attachment  could  not  hold  them.^  So,  if 
goods  be  sold  to  one  for  re-sale,  to  be  accounted  for,  at  a  future 
day,  to  the  vendor,  and  if  sold,  to  be  paid  for  ;  if  not,  to  be  re- 
turned :  while  this  arrangement  is  pending,  the  vendee  has  no 
attachable  interest  in  them.^  So,  where,  by  a  parol  contract  be- 
tween the  parties,  A.  was  to  cultivate  B.'s  farm,  find  part  of  the 
seed,  harvest  the  crop,  and  then  take  one-half  of  it  as  a  compen- 
sation for  his  labor,  and  deposit  the  other  half  in  such  place  as 
B.  should  direct ;  and  before  the  crop  was  harvested  A.  ab- 
sconded, being  insolvent ;  it  Avas  held,  that  he  had  no  such 
interest  in  the  crop  as  would  render  it  liable  to  attachment  for 
his  debts.3  So,  where  A.  leased  a  farm  to  B.,  who  was  to  have 
one-half  of  the  increase  and  produce,  but  the  stock  and  produce 
were  to  be  at  A.'s  control  until  sold  ;  B.  had  not  such  an  interest 
in  the  produce  as  could  be  attached."*  So,  where,  by  the  terms 
of  the  lease  of  a  farm  it  was  stipulated  that  "  all  the  hay  and 
straw  shall  be  used  on  said  farm,"  the  lessee  had  no  attachable 
interest  in  the  hay  and  straw.^  So,  where,  by  an  agreement  be- 
tween a  father  and  his  son,  the  father  was  to  carry  on  business 
in  the  name  and  on  account  of  the  son,  and  as  his  agent,  and  the 
son  was  to  give  the  father  one-half  of  the  profits,  as  a  compen- 
sation for  his  services  ;  and  some  property  purchased  by  the 
father  in  the  name  of  the  son  was  attached  in  a  suit  against  the 
father ;  it  was  held,  that  the  father  had  no  attachable  interest  in 
the  property.^  So,  where  property  is  sold  and  delivered,  upon 
condition  that  the  title  shall  not  vest  in  the  vendee,  unless  the 
price  agreed  upon  be  paid  within  a  specified  time,  the  vendee  has 
no  attachable  interest  in  the  property  until  performance  of  the 
condition.'  So,  if  one  acquires  by  purchase  the  possession  of 
personal  property  by  fraudulent  means,  he  has  not  such  title 

1  Clark  V.   Lynch,   4   Daly,  83.     See  arrear,  it  was  decided   that,  as   against 

Bancker  v.  Brady,  26  Louisiana  Annual,  creditors  of  the  lessee,  such  a  provision 

749.  was  neither  an  absolute  sale  nor  a  mort- 

'.  Meldrum  v.  Snow,  0  Pick.  44L  g<Tge,  and  that  the  produce  could  be  at- 

3  Chandler  v.  Tliurston,  10  Pick.  205.  tached  for  the  lessee's  debt.     Butterfield 

4  Esdon  V.  Colburn,  28  Vermont,  631 ;  v.  Baker,  5  Pick.  522. 

Lewis    V.   Lyman,   22    Pick.   437.      But  ^  Coe  v.  Wilson,  46  Maine,  314. 

where    a    lease    provided,   that    all   the  "  Blanchard  v.  Coolidge,  22  Pick.  151. 

produce    deposited    on    liind    so    leased  ''  Buckmaster  v.  Smith,  22  Vermont, 

should  be  at  the   lessor's   disposal,  and  203 ;  Woodbury   v.   Long,   8   Pick.  543 ; 

that  he   might  enter  to  take  it  for  the  McFarland  v.   Farmer,   42  New   Hamp. 

payment  of  any  rent  that  might  be  in  386. 
[208] 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY.       §  246 

thereto  as  will  enable  his  creditors  to  attach  and  hold  it  as  against 
the  person  from  whom  it  was  fraudulently  obtained.^  So,  prop- 
erty consigned  to  a  factor  cannot  be  attached  for  his  debt,  though 
he  have  a  lien  on  it ;  for  his  lien  does  not  dispossess  the  owner 
until  the  right  is  exercised  by  the  factor,  whose  privilege  is  a  per- 
sonal one,  and  cannot  be  set  up  against  the  owner  by  any  one  but 
the  factor  himself.^  So,  property  lent  to  one  cannot  be  attached 
for  his  debt.^  So,  a  vested  remainder  in  personal  property  cannot 
be  attached  during  the  continuance  of  the  life  estate,  and  while 
the  property  is  in  the  possession  of  the  tenant  for  life.*  So, 
where  property  was,  by  written  agreement,  let  by  A.  to  B.  for 
eight  months,  at  a  weekly  rent,  with  stipulation  that  it  should 
belong  to  B.  at  the  end  of  the  term,  if  the  rent  should  be  paid 
according  to  the  contract ;  and,  on  default  of  any  payment,  A. 
to  have  the  right  to  take  immediate  possession,  and  to  retain  the 
payments  already  made  ;  and  after  B.  had  made  several  payments, 
and  a  final  default  of  payment,  the  property  was  attached  by  a 
creditor  of  B.,  and  A.  instituted  replevin  for  it :  it  was  held, 
that  the  contract  did  not  constitute  a  sale,  but  an  executory 
agreement  for  a  sale  at  a  future  day  ;  that  A.  continued  to  be  the 
owner ;  and  that  B.  had  no  attachable  interest  in  it.^ 

Similar  to  the  foregoing  instances  is  the  case  of  the  money  of  a 
pensioner  of  the  United  States,  paid  by  the  disbursing  officer  of 
the  government  to  the  pensioner's  attorney,  and  attempted  to  be 
subjected  to  attachment  in  his  hands.  Sucli  a  case  arose  in  Ver- 
mont, and  the  court  there  held,  that  the  money  was  protected  b}^ 
the  act  of  Congress,  so  long  as  it  retained  the  distinctive  character 
of  a  pension ;  which  it  retained,  at  least  until  paid  to  the  pensioner  ; 
and  was  not  therefore  liable  to  attachment  in  the  hands  of  his 

agent.*5       So,  o^^r^-Au]     i^    -^n    ^|j^,^nvnpy  -.i  h    |  jpv    in   ^JHti^fiiinMOT   OiJi  fl. 

debt  held  by  hini  for  collection,  cannot  be  levied  on  as  the  prop- 
erty'^the  party  for  whom  it  was  collecLed;  tor,  until  it  is  paid 

1  BuflSington  v.  Gerrish,  15  Mass.  156 ;  personal  one,  see,  also,  Kittredge  v.  Sum- 

DeWolf  V.  liabbc'tt,  4  Mason,  289;  (ias-  ner,  11  Pick.  50. 

quety.  Johnson,  2  Louisiana,  514  ;  Tlionip-  3  Alorgan    v.    Ide,   8    Gushing,   420; 

son    u.    Rose,    10   Conn.    71  ;    llussey   v.  Chase  v.  Klkins,  2  Vermont,  2'JO. 

Tiiornlon,    4     Mass.     405 ;     Bradley    v.  *  Goode    v.    Longinire,    85   Alabama, 

Obear,   10  New  Hamp.  477;  I'arineie  v.  608;  Carson  y.  Carson,  6  Allen,  a'J7. 

McLaughlin, 'J  J^ouisiana,  436  ;  Galbruith  *  Hughes  v.  Kelly,  40  Conn.  148. 

V.  Davis,  4  Louisiana  Annual,  05  ;   Wig-  "  Adams  v.  Newell,  8  Vermont,   190  ; 

gin  V.  Day,  0  Gray,  07.  Bank  of  Tennessee  o.  Dibreil,  3  Sneed, 

^  Holly  V.  Huggef'ord,  8  Pick.  73.     On  37',t ;  Brown   v.   Heath,   45   New    Hamp. 

the  point  of  the  lien  of  the  factor  being  a  168. 

14  [209] 


§  247  ATTACHMENT   OF  PERSONAL   PEOPEETY.      [CHAP.  X. 

over  to  tliat  part}',  he  acquires  no  specific  interest  in  the  particu- 
lar pieces  of  coin,  but  only  a  right  to  receive  from  the  attorney 
tlie-a«K>mit  of  money_  collected.^ 

§  247.  An  interesting  question  connected  with  this  topic  is, 
■Nvliether  a  husband  lias  an  attachable  interest  in  his  wife's  choses 
in  action,  before  he  has  reduced  them  to  possession.  Upon  this 
subject  courts  of  high  authority  have  taken  entirely  opposite 
grounds,  and  the  question  cannot  be  considered  as  yet  settled 
either  way,  by  weight  of  authority.  In  the  affirmative  it  is  held, 
that  the  wife's  choses  in  action  are,  in  virtue  of  the  marriage, 
vested  absolutely  in  the  husband  ;  that  he  has  in  law  the  sole 
right,  during  the  coverture,  to  reduce  them  to  possession,  to  sue 
for  them,  to  sell  them,  to  release  them  ;  and  that  he  has,  therefore, 
an  interest  in  them  which  he  may  assign  to  another,  and  therefore 
an  interest  which  may  be  reached  by  attachment,  and  subjected 
to  the  payment  of  his  debts.  Such  are  the  views  expressed  in 
Massachusetts,  Maryland,  DelaAvare,  Virginia,  and  Missouri.^  It 
is,  however,  admitted,  that  if  the  husband  die  pending  an  attach- 
ment of  his  interest,  and  before  the  same  is  finally  subjected  to 
his  debt,  the  attachment  will  fail,  because  of  the  wife's  right  of 
survivorship.^  On  the  other  hand,  it  is  considered,  —  in  the  lan- 
guage of  the  Supreme  Court  of  Pennsylvania,  —  "that  though 
marriage  is  in  eifect  a  gift  of  the  wife's  personal  estate  in  posses- 
sion, it  is  but  a  conditional  gift  of  her  chattels  in  action  ;  such  as 
debts,  contingent  interests,  or  money  owing  her  on  account  of  in- 
testacy. Perhaps  the  husband  has  in  strictness  but  a  right  to 
make  them  his  own  by  virtue  of  the  wife's  power  over  them, 
lodged  by  the  marriage  in  his  person.  But  if  these  be  not  taken 
into  his  possession,  or  otherwise  disposed  of  by  him,  they  remain 
to  the  wife ;  and  if  he  destines  them  so  to  remain,  who  shall  ob- 
ject? Not  his  creditors  ;  for  they  have  no  right  to  call  on  him  to 
obtain  the  ownership  of  the  wife's  property  for  their  benefit;  and, 
until  he  does  obtain  it,  there  is  nothing  in  him  but  a  naked 

1  Maxwell  v.  McGee,  12  Cushing,  137.  Fleetwood,  1    Harrington,  442 ;  Babb  v. 

'  Shuttleswortli     v.    Noyes,    8    Mass.  Elliott,  4  Ibid.  456  ;  Vance  f.  McLatiglilin, 

229  ;  Commonwealth  f.  Manley,  12  Pick.  8  Grattan,  289;  Hoekaday  v.  Sa lice,  26 

173;  Holbrook  v.   Waters,  19  Ibid.  354;  Missouri,  219. 

Wliecler  r.  Bowen,  20  Ibid.  563 ;  Smmg  "  Strong   v.    Smith,    1    Metcalf,   476; 

r.  Smith,  1  Metcalf,  476;  State  «.  Krebs,  Vance  v.  McLaughlin,  8  Grattan,   289; 

6   Harris    &    Johnson,   31 ;    Peacock    v.  Hoekaday  v.  Sallee,  26  Missouri,  219. 
Pembroke,  4  Maryland,  280 ;  Johnson  v. 

[210] 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY.       §  248 

power,  which  is  not  the  subject  of  attachment."  ^  These  are 
substantially  the  views  also  of  the  courts  of  New  Hampshire, 
Vermont,  North  Carolina,  and  South  Carolina.^  When  such  a 
difference  of  opinion  exists  between  courts  of  such  acknowledged 
ability  as  those  which  have  passed  upon  this  question,  the  subject 
must  needs  be  remitted  to  the  future,  for  a  nearer  ai^proximation 
to  agreement. 

§  248.  The  defendant's  interest  in  personal  property  need  not, 
in  order  to  its  being  subject  to  attachment,  be  several  and  exclu- 
sive. An  interest  held  by  him  in  common  with  others  may  be 
attached  ;  ^  and  the  property  may  be  seized  and  removed,  though 
the  rights  of  the  other  joint  owners  may  thereby  be  impaired  ;  "^ 
and  the  attaching  creditor  cannot  be  held  liable  for  the  expenses 
incurred  or  the  damages  caused  by  its  detention  pending  the  de- 
cision of  the  attachment  suit.^  In  such  case,  only  the  undivided 
interest  of  the  defendant  can  be  sold,  and  the  purchaser  becomes 
a  tenant  in  common  with  the  other  cotenant,^  and  takes  it  sub- 
ject to  the  incumbrances  thereon.'  If  the  officer  sell  the  whole, 
it  is,  as  to  the  cotenant,  a  conversion,  for  which  he  will  be  liable 
to  the  cotenant  in  trover.^  In  cases  of  attachment  of  property 
jointly  owned,  if  the  attachment  be  dissolved,  the  officer's  liability 
to  the  defendant  for  the  property  will  be  discharged  by  its  de- 
livery to  the  cotenant.^  The  doctrine  stated  in  this  section 
applies  to  cases  other  than  partnerships  ;  concerning  which  there 
is  much  diversity  of  decision. 

1  Dennison    v.    Nigh,    2   Watts,    90;  Reed  v.   Howard,  2   Metcalf,   36;   Law- 
Robinson  V.  Woelpper,  1  Wharton,  179.  rence  v.  Burnham,  4  Nevada,  361  ;  Wald- 

'■^  Marston  v.  Carter,   12  New  Hamp.  man  v.  Broder,   10  CaHturnia,  o78 ;  Ber- 

159;  Wheeler   v.   Moore,    13   Ibid.   478;  nal  v.   Ilovious,  17  Ibid.  541;  Veacli  v. 

Pickering  v.  Wendell,  20  Ibid.  222;  Parks  Adams,  51  Ibid.  609. 

r.   Cusiiman,  9   Vermont,  320;  Short  v.  ^  Sibley  v.  P'eruie,  22  Louisiana  Au- 

Moore,  10  Ibid.  416  ;    Probate  Court  v.  nual,  163. 

Niles,  32  Ibid.  775;  Arrington  y.  Screws,  «  Merscreau   v.    Norton,    15   Johnson, 

9   Iredell,   42;  Pressley    v.  McDonald,  1  179;    Ladd    v.    Hill,    4    Vermont,    164; 

Richardson,   27  ;    Godbold    i;.    Bass,    12  Veach  n.  Adams,  51  California,  609. 

Ibid.  202.  '  Sibley  v.  Pernie,  22  Louisiana  An- 

3  Buddington  v.  Stewart,  14  dmn.  nual,  163. 
404  ;  Marion  v.  Faxon,  20  Ibid.  486 ;  «  Ladd  v.  Hill,  4  Vermont,  164 ;  Brad- 
Walker  V.  Flits,  24  Pick.  191;  GoU  v.  ley  v.  Arnold,  16  Ibid.  382;  White  v. 
Ilinton,  7  Abliott  Tract.  120,  overruling  Morton,  22  Ibid.  15  ;  Melville  v.  Brown, 
Stoutenburgh  v.  Vandenburgh,  7  Howard  15  Ma.ss.  79;  Kldridge  r.  Lancy,  17  Pick. 
Pract.  229,  and  Sears  v.  (Jearn,  Ibid.  352;  Walker  i;.  Fitts,  24  Ibid.  I9l. 
383.  "  Frost  v.  Kellogg,  23  Vermont,  308. 


*  Remmington  v.  Cady,  10  Conn.  44 ; 


[211] 


§249 


ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 


§  24'K  AVliere  property  is  of  sucli  nature  that  an  attachment 
of  it  would  produce  a  sacrifice  and  great  injury  to  the  defendant, 
without  benefiting  the  phiintiff,  it  is  not  attachable.  Such  is  the 
rule  in  relation  to  the  defendant's  private  papers,^  or  his  books, 
in  which  his  accounts  are  kept.^  Much  less  would  an  attachment 
be  considered  to  create  a  lien  on  the  accounts  contained  in  the 
books. -^  This  rule  applies  also,  in  relation  to  property  which  is 
in  its  nature  so  peculiarlj^  perishable,  that,  manifestly,  the  pur- 
pose of  the  attachment  cainiot  be  effected  before  it  will  deca}'  and 
become  worthless  ;  as,  for  instance,  fresh  fish,  green  fruits,  and 
t4ie  like.*  And  it  has  been  held,  that  a  growing  crop  of  grass 
cannot  be  attached.''' 


1  Oystead  v.  Shed,  12  Mass.  506. 

2  Bradford  v.  Gillaspie,  8  Dana,  67  ; 
Oystead  v.  Slied,  12  Mass.  500. 

3  Oliors  V.  Hill,  3  McCord,  338.  It  is 
very  doubtful  vviietlier  tlie  exemption  of 
boolis  of  accounts  and  negotiable  securi- 
ties from  direct  attachment  is  not  fraught 
with  evil,  as  it  affords  an  abundant  oppor- 
tunity for  fraudulent  conceahnent  of 
means  which  debtors  have  for  paying 
their  debts.  The  State  of  Ohio  in  its 
Code  of  Civil  Procedure,  adopted  in 
1853,  and  the  State  of  Missouri,  in  1855, 
have  taken  a  very  important  step,  which 
deserves  to  be  followed  generally,  in  au- 
thorizing the  attachment  of  all  books  of 
account,  accounts,  and  securities  of  the 
debtor,  and  placing  them  in  the  hands  of 
a  receiver  appointed  by  the  court,  who 
col  ects  them,  and  applies  the  proceeds 
under  the  direction  of  the  court.  Under 
a  statute  requiring  the  sheriff  to  attach 
and  '■  take  into  his  custody  all  books  of 
account,  vouchers,  and  papers,  relating 
to  the  property,  debts,  credits,  and  effects 
of  the  debtor,  together  with  all  evidences 
of  his  title  to  real  estate  ;  which  he  shall 
safely  keep,  to  be  disposed  of  as  di- 
rected;" it  was  held,  that  letters  and 
correspondence  were  not  attachable  ;  and 
that  an  officer  who  assumed  to  examine 
attached  books  and  papers,  and  take 
copies  of  business  letters,  and  look  into 
the  correspondence  of  the  defendant,  or 
do  any  other  act  in  relation  to  them, 
than  simply  to  keep  them  safely,  subject 
to  the  direction  of  the  judge  who  allowed 
the  process,  was  guilty  of  an  unpardon- 
able abuse   of  his   powers,   and   of    the 

[212] 


process  of  the  court ;  and  the  court  or- 
dereil  the  books  and  papers  attached  to 
be  kept  under  lock  and  key,  without 
power  on  the  part  of  any  one,  except  the 
defendant,  to  examine  them ;  and  re- 
quired the  officer  to  deliver  up  to  the 
defeiulant's  counsel  all  copies  taken  by 
him,  and  to  make  oath  at  the  time  of  tiie 
delivery,  that  such  copies  embraced  all 
that  the  officer  believed  to  exist ;  and 
ordered  that  the  plaintiff's  counsel  should 
be  restrained  from  using,  in  any  way, 
the  books  and  papers  attached,  or  dis- 
closing their  contents,  or  the  contents  of 
copies  taken  from  them.  Hergman  v. 
Dettlebach,  11  Howard  Pract.  46. 

*  Wallace  v.  Barker,  8  Vermont,  440. 
In  Penhallow  v.  Dwight,  7  Mass.  34,  it 
was  held,  that  an  entry  on  land  for  the 
purpose  of  levying  an  execution  on  unripe 
corn  or  other  produce,  whicii  would  yield 
nothing,  but  in  fact  be  wasted  and  de- 
stroyed by  the  very  act  of  severing  it 
from  the  soil,  would  be  illegal.  But  such 
is  not  the  case  where  the  produ<;e,  such 
as  corn  and  potatoes,  is  ripe  for  the  har- 
vest. Heard  v.  Fairbanks,  5  Metcalf, 
111. 

5  Norris  v.  Watson,  2  Foster,  364.  It 
was,  in  Massachusetts,  sought  to  estab- 
lish the  rule  that  hay  in  a  barn  could  not 
be  attached,  because  of  tiie  difficulty  of 
removing  it  without  loss,  and  of  identify- 
ing it ;  but  the  court  refused  to  sustain 
that  position.  Campbell  v.  Johnson,  11 
Mass.  184.  And  in  the  same  State  it 
was  held,  that  tobacco  stored  in  barns, 
hanging  on  poles,  in  process  of  curing, 
might  be  attaclied,  though  in  such  a  con- 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY.       §  251 

§  250.  Where  property  is  so  in  the  process  of  manufacture  and 
transition  as  to  be  rendered  useless,  or  nearly  so,  by  having  that 
process  arrested,  and  to  require  art,  skill,  and  care  to  finish  it, 
and  when  completed  it  will  be  a  different  thing,  it  is  not  subject 
to  attachment.  Such  are  hides  in  vats,  in  the  process  of  tanning, 
which,  if  taken  out  prematurely  and  dried,  could  never  be  con- 
verted into  leather,  or  restored  to  their  former  condition.^  Such, 
too,  are  a  baker's  dougli ;  materials  in  the  process  of  fusion  in  a 
glass  factory  ;  burning  ware  in  a  potter's  oven  ;  a  burning  brick- 
kiln ;  or  a  burning  pit  of  charcoal.  In  all  such  cases,  the  officer 
cannot  be  required  to  attach  ;  for  he  should  have  the  right  of 
removal  ;  and  he  is  not  bound  to  turn  artist,  or  conduct,  in  per- 
son or  by  an  agent,  the  process  of  manufacture,  and  be  responsi- 
ble to  both  parties  for  its  successful  termination.^  But  where  a 
pit  of  charcoal  was  in  part  entirely  completed,  so  as  not  to  require 
any  further  attention  or  labor,  and  the  residue  had  so  far  pro- 
gressed in  the  process  that  it  was  in  fact  completed,  but  some 
labor  and  skill  were  still  necessary,  in  order  to  separate  and  pre- 
serve it  properly  ;  it  was  held,  that  if  an  officer  saw  fit  to  attach 
and  take  possession  of  it,  and  run  the  risk  of  being  able  to  keep 
it  properly,  he  had  a  right  to  do  so  ;  and  that,  if  any  portion  of 
the  coal  should,  through  the  want  of  proper  care  and  attention 
on  his  part,  be  destroyed,  the  owner  could  not  maintain  trespass 
against  him  for  such  non-feasance  ;  and  that  the  attaching  creditor 
was  not  liable  therefor,  unless  the  omissions  were  by  his  com- 
mand or  assent.^ 

§  251.  Property  in  custodia  legis  cannot  be  attached.  Thus, 
goods  attached  by  one  officer,  and  in  his  possession,  cannot  be 
attached  by  another  officer  ;  *  nor  can  property  which  has  once 
been  attached,  and  released  to  the  defendant  upon  his  executing 
a  delivery  bond  therefor,  with  sureties,  be  again  attached  while 
liable  to  be  required  to  be  delivered  under  that  bond.^  So,  goods 
held  by  a  collector  of  the  revenue  of  the  United  States,  to  en- 
force payment  of,  or  as  security  for,  the  duties  thereon,  are 
not  attachable  by  a  creditor  of  the  importer.*^     So,  a  ship  in  the 

(lition  that  it  could  not  be  moved  witliout  '  Hale  v.  Huntly,  21  Vermont,  147. 

great   damage.     Cliesliire   Nat.   Bank   v.  *  Post,  §  267. 

Jewett,  11!)  Mass.  241.  '  Roberts  v.  I')unn,  71  Illinois,  46.    See 

1  Bond  V.  Ward,  7  Mass.  12-3.  Thompson  v.  Marsh,  14  Mass.  269. 

2  Wilds  V.  Blancliard,  7  Vermont,  138.  «  Harris  v.  Dennie,  3  Peters,  2'J2. 

[•J13] 


/\ 


§  251       ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 

possession  of  a  sheriff,  under  an  attachment  issued  out  of  a  State 
court,  cannot  be  attached  by  a  marshal  of  the  United  States, 
under  a  warrant  in  admiralty.^  •  Nor  can  property  attached  by 
an  ofiieer  of  a  United  States  court  be  taken  out  of  lu"s  liauds  by 
an  officer  under  process  issued  by  a  State  court.^  If,  however, 
an  officer  in  possession  of  c^oods  under  a  levy,  consents  that  an- 
other officer  levy  an  attachment  theretdT,  but  without  disturbing 
his  possession,  and  agrees  that,  after  satisfaction  of  his  claims,  he 
will  hold  the  goods  as  bailee  of  the  other  officer,  the  second  levy 
is  lawful.^ 

Repeated  attempts  have  been  made  to  levy  attachments  or  ex- 
ecutions upon  money  collected  under  execution  ;  but  such  money, 
Avhile  in  the  hands  of  the  officer  who  collected  it,  has  uniformly 
been  held  to  be  in  custodia  legis,  and  for  that  and  other  reasons, 
not  subject  to  such  levy.^  This  rule,  however,  applies  only 
where  the  sheriff  is  bound,  virtute  officii,  to  have  the  money  in 
hand  to  pay  to  the  execution  plaintiff;  and  not  to  cases  in  which 
he  has  in  his  possession,  after  satisfying  the  execution,  a  surplus 
of  money,  raised  by  the  sale  of  property.  Such  surplus  is  the 
property  of  the  execution  defendant,  and  being  held  by  the  sheriff 
in  a  private,  and  not  in  his  official,  capacity,  it  may  be  attached 
in  his  hands.^ 

Upon  the  principle  that  property  in  custodia  legis  is  exempt 
from  attachment,  money  paid  into  the  hands  of  a  clerk  or  prothon- 
otary  of  a  court  on  a  judgment,^  or  in  his  possession  in  virtue  of 
his  office,'^  cannot  be  attached.     So,  of  money  paid  into  court.^ 

1  The  Robert  Fulton,   1    Paine,  620;  Johnson,  421;  Jones  v.  Jones,  1   Bland, 

Tlie  Oliver  Jordan,  2  Curtis,  414  ;  Taylor  448 ;  Blair  v.  Cantey,  2  Speers,  34  ;  Bur- 

V.  Carryl,   24   Penn.    State,  250,  and   20  rull  v.  Letson,  1  Strobhart,  239  ;  Clymer 

Howard    Sup.   Ct.  583.     See    Metzner  v.  v.  Willis,   3  California,  3G3.     These  au- 

Grahani,  57  Missouri,  404.  thorities  bear  on  the  question  of  seizing 

■''  Freeman  y.  Howe,  24  Howard  Sup.  the  money  i/i  s^ime.     For  those  applicable 

Ct.  450  ;  Moore  v.  Withenburg,  13  Loui-  to  an  atteini)t  to  reach  it  by  garnishment, 

siana  Annual,  22;  Lewis  v.  Buck,  7  Min-  see  post,  §  506. 
nesota,  104.  ^  Orr  v.  McBride,  2  Carolina  Law  Re- 

•*  Davidson  v.  Kuhn,  1  Disney,  405.  pository,  257 ;  Watson  v.  Todd,  5  Mass. 

*  Turner  v.  Fendall,  1  Cranch,   117;  271;  Davidson   v.  Clayland,   1   Harris  & 

Prentiss  f.  Bliss,  4  Vermont,  513;  First  Johnson,   540;    Tucker   v.   Atkinson,    1 

V.  Miller,  4  Bibb,  311  ;  Dubois  v.  Dubois,  Humphreys,  300. 

6  Cowen,  494  ;  Crane  v.  Freese,  1  Ilarri-  ''  Ross  v.  Clarke,  1  Dallas,  354  ;  Alston 

son,  305;  Dawson  v.  Holcombe,  1   Ohio,  v.  Clay,  2  Haywood  (N.  C),  171. 
135  ;  Reddick  v.  Smith,  4  Illinois  (3  Scam-  ■"  Hunt  v.  Stevens,  3  Iredell,  365, 

mon),  451 ;  Tiiompson  v.  Brown,  17  Pick.  *  Farmers'  Bank,  v.  Beaston,  7  Gill  & 

462 ;  Conant  v.  Bicknell,  1  D.  Chipman,  Johnson,  421. 
50;  Farmers'  Bank  i;.  Beaston,  7  Gill  & 
[214] 


CHAP.  X.]       ATTACHMENT   OF   PERSONAL   PROPERTY.  §  251 

So,  of  property  in  the  hands  of  an  administrator,  which  will  be- 
long- to  the  defendant  as  distributee,  after  settlement  of  the 
administrator's  accounts.^  So,  property  in  the  hands  of  an  exec- 
utor cannot  be  attached  in  a  suit  against  a  residuary  legatee  or  a 
devisee.2  So,  property  of  a  person  who  has  been  judicially  found 
to  be  insane  cannot  be  attached  in  the  hands  of  his  guardian.^ 
So,  where,  under  a  creditor's  bill,  a  receiver  has  been  appointed 
by  the  court  and  placed  in  charge  of  the  property,  the  title  of 
which  is  in  controversy,  the  propert}^  cannot  be  attached  by 
another  creditor.*  So,  it  has  been  held,  that  garnishment  has  the 
effect  to  place  the  property  in  the  garnishee's  hands  in  the  cus- 
tody of  the  law,  and  that  an  officer  has  no  right,  after  the  gar- 
nishment, to  take  the  property  from  the  garnishee.^  But  in 
Massachusetts,  it  was  decided  that,  though  garnishment  is  an 
attachment  of  the  effects  in  the  garnishee's  hands,  yet  they  may 
be  attached  and  taken  into  the  possession  of  the  officer,  subject 
to  the  lien  of  the  creditor  who  effected  the  garnishment.*^ 

A  case  of  interest  and  importance  is  reported  in  Louisiana,  in 
which  the  doctrine  now  under  consideration  was  applied.  A  suit 
in  chancery  was  instituted  in  Memphis,  Tennessee,  by  stockhold- 
ers of  a  bank  there,  against  the  bank  and  its  president  and  di- 
rectors ;  in  which  a  receiver  was  appointed,  an  injunction  obtained, 
and  an  order  for  the  delivery  of  the  assets  of  the  bank  to  the 
receiver  served  on  the  president  ;  who,  during  an  unsuccessful 
attempt  to  enforce  the  process  of  the  court,  obtained  possession  of 
the  assets,  and  ran  off  with  them  to  New  Orleans,  where  they  were 
attached  in  his  hands  by  a  creditor  of  the  bank,  and  were  claimed 
in  the  attachment  suit  by  the  receiver  appointed  by  the  court  in 
Tennessee.  The  New  Orleans  court  promptly  ordered  them  to 
be  released  from  the  attachment,  and  delivered  to  the   receiver." 

1  Elliott   I'.    Newbj-,    2    Hawks,    21 ;  ''  Paradise  v.  Farmers  and  Merchants' 

Youns  r.  Young,  2  Hill  (S.  C),  425.  Bank,  5   Louisiana   Annual,    710.      The 

'  Thornliill  r.  Christmas,  11  Robinson  court  said:  "The    property   which  thus 

(La.),  201.  stands  before  us  for  adjudication  appears 

3  Hale  V.  Duncan,  Brayton,  132;  Ross  to  have  been  brought  within  the  jurisdic- 

V.  Edwards,  52  Georgia,  24.  tion  of  this  court  in  disobedience  and  in 

*  I'erego  r.  Honcsteel,  5  Bissell,  60.  violation   of  the  process  of  a  court  of  a 

5  Scholefield  v.  Bradlee,  8  Martin,  405  ;  sister  State,  and  in  frau<lulent  violation  of 

Brashear  v.  West,  7  Peters,  608;  Dennis-  the  rights  of  property  of  its  real  owners, 

toun  V.  New  York  C.  &  S.  F.  Co.,  6  Loui-  It  is  proved  that  the  process  of  the  court 

siana  Aiuiual,  782.  of  chancery,  and  a  writ  of  injunction,  and 

<^  Burlingame  v.  Bell,  16  Mass.  318;  an  order  directing  the  delivery  of  the  as- 

Swett  V.  Brown,  5  Pick.  178.  sets  of  the  bank  forthwith,  to  the  receiver, 

[215] 


ATTACHMENT    OF    PERSONAL   PROPERTY.       [CHAP.  X. 


Tliis  case  is  to  he  distinguished  from  tliat  of  a  receiver  of  a  cor- 
poi-ation,  n[ipointed  by  a  court  of  tlie  State  iu  which  the  corpo- 
ration exists,  seeking  to  rech\ini  propert}'  of  the  corporation  in 
another  State,  wliere  it  was  attached  by  a  creditor  of  the  corpo- 
ration residing  in  the  Litter  State,  before  the  receiver  reduced  it 
to  his  possession.  There  it  is  held,  that  the  attachment  will 
hold  the  property.^ 

In  Alabama,  an  attachment  was  placed  in  the  hands  of  a  sheriff,^ 
and,  before  its  levy,  a  writ  of  seizure  was  issued  by  a  court  of 
chancery,  and  directed  to  the  same  officer.  With  both  writs  in 
his  hands  he  attempted  to  execute  both  at  the  same  time  ;  but  it 
was  held,  that  the  attachment  was  inoperative,  and  must  give 
way  ;  that  he  could  not  qualify  and  restrict  the  custody  which 
he  took  for  the  court,  under  the  writ  of  seizure,  with  the  levy  of 
the  attachment,  unless  he  had  the  property  under  his  control ; 
and  the  moment  he  acquired  that  control,  the  property  was  in 
the  custody  of  the  court. ^ 

§  252.  It  has  been  attempted  to  apply  in  this  country  the  rule 


were  duly  served  on  Tovvlkes  [tlie  presi- 
dent] as  well  as  the  directors  of  the 
bank. 

"  The  grounds  on  whioli  it  is  contended 
tlie  judgment  of  the  district  court  [order- 
ing the  property  to  be  delivered   to  the 


biniling  upon  the  bank,  as  well  as  in  the 
furtherance  of  justice.  We  have  uni- 
formly discountenanced  all  attempts,  in 
whatever  form  they  may  be  made,  of 
making  our  courts  instruments  for  defeat- 
ing the  action  of  courts  of  otlier  States 


receiver]  is  to  be  reversed,  are:  1.  That  on  property  within  their  jurisdiction,  by 
a  receiver  in  chancery  cannot  maintain  a  means  of  clandestine  or  forcible  removal 
suit  without  special  authority  from  the     to  this  State.     The  only  decree  we  render 


court  which  appoints  him  ;  2.  That  the 
possession  of  the  property  attached,  not 
having  been  in  the  receiver,  it  is  liable  to 
the  process  of  attachment  at  the  instance 
of  a  bona  fide  creditor. 

"  We  will  not  inquire  into  the  techni- 
cal question  whether  the  authority  of  the 
chancellor  is  necessary  to  institute  a  suit 
at  law  ;  it  is  sufficient  for  us  that  prop- 
erty, in  relation  to  which  an  order  of  a 
court  of  a  sister  State  of  com|)etent  juris- 
diction has  been  issued,  liiis  been  fraud- 
ulently or  forcibly  withdrawn  from  its 
jurisdiction  by  a  party  to  the  suit,  and 
that  the  injunction  issued  in  this  case  by 
the  chancellor  is  still  in  force  and  binding 


in  such  cases  is  that  of  immediate  and 
prompt  restitution,  or  one  preventing  any 
rights  to  be  acquired  by  these  attempts 
to  defeat  the  ends  of  justice. 

"  This  is  an  answer  to  the  question 
raised  concerning  the  peculiar  right  of 
the  creditor.  The  only  rigiit  which  he  in 
any  event  could  reach,  would  be  subordi- 
nate to  the  injunction  from  the  operation 
of  which  this  property  has  been  attempt- 
ed to  be  removed.  Not  only  on  general 
principles,  but  on  the  cases  cited  by  the 
learned  jiulge  who  decided  this  case,  tlie 
claim  of  the  plaintiff  to  subject  this  prop- 
erty to  attachment  is  without  the  shadow 
of  right."     See  Wingate  v.  Wheat,  6  Loui- 


upon  the  offending  party.     Tlie  order  of  siana  Annual,  238 ;    Myers  v.  Myers,  8 

the  court   of  clumcery  is  a  sufficient  au-  Ibid   369. 

ttiority  for  the  intervenor  [the  receiver]  ^  Dunlop  r.  Paterson  F.  I.  Co.,  19  New 

to  receive  the  assets  of  tlie  bank  ;  and  the  York  Sujirenie  Ct.  027. 
deliverv  to  liim  will  he  a  good  delivery,  ■^  Kead  v.  Sprague,  34  Alabama,  101. 

'  [-ilGj 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY. 


252 


of  the  English  law  of  distress,  exempting  from  seizure  whatever 
is  in  a  i)arty's  present  use  or  occupation  ;  but  the  attempt  has 
met  witli  onlj'  partial  success.  In  Tennessee,  a  \evxMik3  ^^^^}i~, 
smith's  tools  while  he  was  using  them,  was  sustained.^  And  so, 
in  jMassachuseTtsTwas  an  attachmeiit  of  a  stage-coach,  actuallX" 
in  use.^  ^~ 

Those  were  instances  of  personal  property  not  worn  about  the 
defendant's  person.  In  regard  to  property  so  worn,  the  English 
doctrine  in  relation  to  distress  was  fully  adopted  in  Massachu- 
setts, in  a  case  where  an  officer  into  whose  hand  the  defendant 
placed  a  watch,  to  compare  its  weight  with  that  of  another,  took 
it,  under  an  attachment,  from  the  person  of  the  defendant,  by 
severing  a  silk  band  which  passed  about  his  neck,  and  to  which 
the  watch  was  attached.  The  court  ruled  that  the  seizure  was 
wrongful,  and  that  the  watch  could  not  be  held  under  the  attach- 
ment.^    If,  however,  the  officer,  acting  under  other  process,  law- 


1  Bell  V.  Douglass,  1  Yerc^er,  397. 

2  Potter  f.  Hall,  3  Pick.  368.  Parker, 
C.  J.,  sairl  :  "  It  is  said  that  property  in 
actual  use  was  not  sul)ject  by  the  com- 
mon law  to  distress  for  rent,  and  that  tiie 
same  law  is  to  determine  what  property 
is  or  is  not  attachable  under  our  statutes. 
The  principles  of  the  common  law  will 
undoubtedly  apply,  because  founded  on 
reason  ;  but  the  application  of  these  prin- 
ciples may  be  different  now,  from  tiiat 
which  was  made  several  hundred  years 
ago,  when  the  rule  was  laid  down.  The 
state  of  tlie  country  then  required  larger 
e.xemptions  than  at  present.  livery  tiling 
was  then  subservient  to  agriculture.  Now 
commerce  and  credit  assume  an  equal 
ranl<,  and  tilings  which  were  necessary 
for  a  man's  living  at  a  former  period  iiave 
ceased  to  be  so.  .  .  .  The  cases  put  in 
Comyns's  Digest  to  illustrate  the  general 
position,  that  chattels  in  actual  use 
are  not  to  be  taken  in  distress,  sliow  that 
tlie  rule  was  ap])lied  to  things  compara- 
tively of  small  value,  an<l  such  as  coidd 
not  be  taken  without  great  inconvenience, 
and  in  some  of  the  cases  they  were  other 
persons'  property  accidentally  upon  the 
land  ;  a  liorse  actually  in  riding,  or  going 
to  mill,  or  standing  at  the  miller's  door, 
&c.  To  apply  a  rule  which  had  protected 
such  kinfl  of  property  to  articles  of  lux- 
ury, or  of  great  value,  would  be  contrary 


:\ 


A 


to  the  reason  of  the  common  law.  Stage- 
coaches are  often  of  great  value,  and 
many  of  them  owned  by  the  same  person. 
Ships,  steamboats,  &c.,  come  witiiin  the 
same  reason ;  creditors,  and  credit  itself, 
would  be  exceedingly  injured,  if  they  were 
held  free  from  attachment." 

3  Mack  V.  Parks,  8  Gray,  517.  The 
court  said  :  "  The  justification  on  which 
the  defendant  relies  in  answer  to  the 
trespass  alleged  in  the  declaration  de- 
pends on  the  right  of  the  sheriif  or  other 
officer  to  attach  on  inegne  process  articles 
worn  on  the  person  of  the  debtor  as  part 
of  his  dress  or  apparel,  at  the  time  when 
the  attachment  is  made,  or  then  in  his 
actual  ])ossession  and  use. 

"  We  are  not  aware  that  any  such 
right  has  ever  before  been  asserted  in 
this  Commonwealth.  There  is  no  judi- 
cial recognition  of  it,  and  we  are  quite 
sure  that  there  has  never  been  any  at- 
tempt practically  to  enforce  it.  It  can 
hardly  be  supposed  that  the  omission  to 
exercise  it  has  been  caused  by  forbear- 
ance or  ignorance.  Creditors  are  not  apt 
to  slumber  over  their  rights,  or  lose 
them  for  want  of  vigilance,  or  out  of 
tenderness  towards  their  delinquent  debt- 
ors. This  consideration  is  entitled  to 
great  weight,  because  we  are  to  seek  for 
the  origin  and  foundation  of  the  right  on 
which   the  defendant  rests  bis  justifica- 

[217] 


§  252 


ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 


full}^  separate  tlie  property  from   the  person  of  the  defendant, 
without  the  purpose  thereby  to  open  the  way  to  its  attachment, 


tion,  among  tliose  well  understood  .and 
recognized  usages  and  customs  wliicli 
have  become  a  part  of  our  unwritten 
law. 

"  By  tlie  Rev.  Sts.  c.  90,  §  24,  it  is 
provided  tliat  all  goods  and  chattels  that 
are  liable  to  be  taken  on  execution  may 
be  attached,  '  except  such  as,  from  their 
nature  or  situation,  have  been  considered 
as  exempted  from  attachment,  according 
to  the  principles  of  the  common  law  as 
adopted  and  practised  in  this  State.'  .  .  . 
With  a  few  exceptions,  the  kind  of 
goods  lawfully  subject  to  distress  or  at- 
tachment has  never  been  defined  by  stat- 
ute, either  under  the  Colonial  or  State 
government.  It  must  therefore  be  deter- 
mined by  the  common  law. 

"  It  seems  to  be  perfectly  well  settled 
at  common  law,  that  chattels  in  the  act- 
ual possession  and  use  of  a  debtor  cannot 
be  taken  or  distrained.  It  is  laid  down 
in  Co.  Lit.  47  a,  that  '  although  it  be  of 
valuable  property,  as  a  horse,  &c.,  yet 
when  a  man  or  woman  is  riding  on  him, 
or  an  axe  in  a  man's  hand  cutting  of 
wood  and  the  like,  they  are  for  that  time 
privileged,  and  cannot  be  distrained.' 
So  '  if  nets  are  in  the  hands  of  a  man 
they  cannot  be  distrained  any  more  than 
a  horse  on  which  a  man  is.'  Margrave's 
note  (2P4).  S.  P.  Read  v.  Burley,  Cro. 
Eliz.  539,  596.  In  the  leading  case  of 
Simpson  v.  Hartopp,  Willes,  512,  which 
Mr.  Justice  Buller  says  (4  T.  R.  568) 
is  '  of  great  authority,  because  it  was 
twice  argueil  at  the  bar,  and  Lord  Chief 
Justice  Willes  took  infinite  pains  to 
trace  with  accuracy  those  things  which 
are  privileged  from  distress,'  it  is  dis- 
tinctly a<ljudged  that  things  in  actual 
use  cannot  lie  taken  or  distrained ;  and 
the  reason  given  is,  that  an  attempt  to 
distrain  such  articles  would  lead  to  a 
breach  of  the  peace.  In  the  modern 
case  of  Sunbolf  v.  Alford,  3  M.  &  W.  253, 
it  is  laid  down  as  well-settled  law,  that 
'goods  in  the  actual  possession  and  use 
of  the  debtor  canimt  be  distrained  ; '  '  a 
man's  clothes  cannot  be  taken  off  his 
back  in  execution  of  a  .^>?'/  facias.'  The 
main  ground  on  which  these  and  other 
authorities  rest  is,  that  it  would  tend 
[218] 


directlj'  to  a  collision  and  breach  of  the 
peace,  if  articles  thus  situated  were  al- 
lowed to  be  taken  from  the  hands  of  a 
debtor.  Gorton  v.  Falkner,  4  T.  R.  565 ; 
Storey  v.  Robinson,  6  T.  R.  139  ;  Adames 
r.  Field,  12  Ad.  &  El.  649,  and  4  Perry 
&  Dav.  504;  Com.  Dig.  Distress,  C. ; 
Gilbert  on  Distresses,  43.  There  are 
many  articles  of  personal  property,  sub- 
ject to  attachment  under  our  laws  and 
usages,  wliich  could  not  have  been  dis- 
trained or  taken  at  common  law  under 
the  rule  as  stated  in  the  earliest  author- 
ities. Potter  V.  Hall,  3  Pick.  368.  But 
in  the  absence  of  any  proof  of  usage  or 
custom  in  this  State,  from  which  it  might 
be  inferred  that  a  different  rule  of  law 
has  ever  been  adopted,  the  present  case 
falls  within  the  principles  on  which  the 
Englisii  authorities  rest,  and  must  be 
governed  by  them. 

"  The  watch,  at  the  time  it  was  taken 
by  the  defendant,  was  in  the  plaintiff's 
actual  possession  and  use,  worn  as  part 
of  his  dress  or  apparel,  and  was  severed 
from  his  person  by  force.  Such  an  act, 
if  permitted,  would  tend  quite  as  directly 
to  a  breach  of  the  peace  as  to  take  from 
a  man  the  horse  on  which  he  was  riding, 
or  the  axe  with  which  he  was  felling  a 
tree.  It  is  indeed  a  more  gross  violation 
of  the  sanctity  of  the  person,  anil  tends 
to  a  greater  aggravation  of  the  feelings 
of  the  debtor.  Nor  would  it  be  practica- 
ble to  place  any  limit  to  the  exercise  of 
such  a  right.  If  allowed  at  all,  it  must 
extend  to  every  article  of  value  usually 
worn  or  carried  about  the  person  ;  if  an 
officer  can  sever  a  silken  cord,  he  may 
likewise  break  a  metallic  chain ;  if  he 
can  seize  and  take  a  watch,  so  he  may 
wrest  a  breastpin  or  ear-ring  from  the 
person,  or  thrust  his  hand  into  tiie  pocket 
and  carry  off  money;  he  may,  in  short, 
resort  to  any  act  of  force  necessary  to 
enable  him  to  attach  property  in  the  per- 
sonal custody  of  the  debtor.  It  is  obvi- 
ous that  such  a  doctrine  would  lead  to 
consequences  most  dangerous  to  the 
good  order  and  peace  of  society. 

"  It  is  no  answer  to  this  action  that 
the  defendant  tendered  to  the  plaintiff 
the   value   of    the  cord    by   which    the 


4 


CHAP.  X.]       ATTACHMENT   OF   PERSONAL   PROPERTY.  §  253  a 

he  may  attach  it  under  writs  subsequently  coming  into  his 
hands.  ^ 

§  252  a.  The  property  of  individuals  or  corporations  who  owe 
duties  to  the  public,  is  not  for  that  reason  exempted  from  liability 
to  attachment,  except  so  long  as  it  is  in  actual  use  in  the  dis- 
charge of  such  duty.  Thus,  where  a  steamboat  was  attached, 
which  was  ordinarily  employed  by  her  owner  in  transporting  the 
mail  between  New  Orleans  and  Mobile,  but  at  the  time  of  the 
attachment  was  not  so  engaged,  and  had  not  a  mail  on  board ; 
her  connection  with  the  mail  service  was  urged  as  a  ground  for 
releasing  her  from  the  attachment,  because  the  seizure  was  a  vio- 
lation of  the  act  of  Congress  against  obstructing  the  mails  ;  but 
this  position  was  overruled,  and  the  attachment  sustained.^  And 
so  in  regard  to  the  rolliiig  stock  of  a  railroad.^  But  where^an 
ofSHr'atta^ed  amailw^^  horses_which  were  at  .tlb^e 

time  in  use  upon  the  mail  route  in  carrying  the  mail,  the  attach- 
ment waslield  to"be  a  violation  of  the  law  of  the  United  States 
agaiust-obstrtTCttiigTlie  passage  of  the  mail,  aiid  therefore  illegal.'* 

§  253.  It  is  not  necessary  that  the  defendant's  property,  in 
order  to  be  subject  to  attachment,  should  be  in  his  possession.  It 
may  be  attached  wherever  found.^ 

§  253  a.  Personal  property  found  in  the  defendant's  possession 
is  presumed  to  be  his,  if  nothing  appear  to  the  contrary,  and  may 

watch   was   attached    to   the   person,   or  In  Massachusetts  the  question  was  raised 

that  tlie  watch  itself,  detaclied  from  tiie  whether  tiie  boat,  cabk-,  and  anclior  of  a 

person,  was  subject  to  attaciinient.     The  vessel  could  be  attaclied  and  separated 

wrong  consists  in  having  taken  an  article  from    the   vessel.     The    court   said   that 

from    tlie  person  of  the  plaintiff,  wiiich  this  might  depend  upon  the  situation  of 

was  at  tlie  time  by  law  exempted  from  those  articles  in  relation  to  the  vessel, 

attachment.     The  mode  in  whicii  it  was  If  taken  when  in  use  and  necessary  to 

done  is  wholly  immaterial.     He  is  liable  her  safety,  the  taking  would  subject  the 

for  tlie  value  of  the  watch,  being  a  tres-  party  taking  them  to  damages.      But  if 

passer    ab     initio.      'No     lawful     thing,  the  vessel  were  at  a  wharf,  and  her  cable 

founded  on  a  wrongful  act,  can  be  sup-  and   anchor  and  boat  not  in  use,  there 

ported.'     Luttin   v.   Benin,   11  Mod.  50;  was   no  reason  why  they  migtit   not  as 

Ilsley   V.   Nichols,    12    Pick.    270.      The  well  be  taken  as  the  harness  of  a  carriage, 

watch,  although  liable  to  attachment   if  or  the  sails  and  rigging  of  a  vessel  when 

it  had  been  taken  by  tiie  defendant  when  separated  from  tlie  hull  and  laid  up  on 

not  connected  with  the  person  of  the  plain-  shore.  Briggs  v.  Strange,  17  Mass.  405. 
tiff,  was   wrongfully   seizcil,  and   cannot  ^  Boston,   C.  &  M.   11.  II.   Co.  v.  Gil- 

now  be  held  under  the  attachment."  more,  37  New  Hamp.  410. 

1  Closson  V.  Morrison,  47  New  Ilamp.  *  Harmon  v.  Moore,  50  Maine,  428. 
482.  ^  Graighle  v.   Notnagle,  Peters,  C.  C. 

2  Parker  v.  Porter,  G  Louisiana,  1G9.  245 ;  Livingston  v.  Smith,  5  Peters,  90. 

[219] 


§  254       ATTACHMENT  OF  PERSONAL  PROPERTY.   [CHAP.  X. 

and  ijliouUl  be  attached  as  sucli.^  If  an  officer  omit  to  attach  it 
Avhen  so  found,  and  when  its  attachment  is  necessary  for  the 
phiintiff's  securit}',  lie  cannot  be  excused,  unless  he  prove  that, 
notwithstanding  such  appearances,  the  property  was  not  in  fact 
the  defendant's,  —  in  wliicli  case  the  burden  of  proof  rests  upon 
the  officer  ;  or  unless,  wliere  there  were  reasonable  grounds  to 
suspect  tliat  tlie  defendant  was  not  the  owner,  the  plaintiff  re- 
fused—  what  the  officer  in  such  cases  lias  always  a  right  to  de- 
mand ^ —  to  indemnify  the  officer  for  any  mistake  lie  might  make 
in  conforming  to  the  plaintiff's  direction.'^  In  an  action  against 
an  officer  for  such  an  omission  the  burden  of  proof  of  damage  is 
upon  the  plaintiff;  damage  cannot  be  inferred.* 

§  253  h.  If  the  owner  of  goods,  to  prevent  their  being  attached 
for  his  debt,  represent  that  they  belong  to  another;  and  the  party 
to  whom  the  representation  is  made,  believing  it  to  be  true,  at- 
taches tlie  goods  as  the  property  of  him  to  whom  the  owner  repre- 
sented them  to  belong;  and  the  owner  ])ring  trover  for  the  goods; 
he  is  esto])ped  from  showing  that  his  representation  was  false, 
though  when  he  made  it  he  had  no  notice  of  the  debt  on  which 
the  goods  were  attached,  and  had  no  intention  to  deceive  the 
party  who  attached  them.^ 

§  254.  The  possession  of  personal  property,  though  an  indicium 
of  ownei'ship,  does  not  render  it  liable  to  attachment  for  the  debt 
of  the  possessor  who  is  not  the  owner,  unless,  perhaps,  his  posses- 
sion be  fraudulent  and  intended  for  colorable  purposes.^  Thus, 
where  a  son  purchased  a  farm  and  stocked  it,  with  a  view  to  fur- 
nishing a  home  for  an  indigent  father,  and  permitted  the  father 
to  reside  and  labor  there  ;  the  products  of  the  farm  were  held  not 
sul)ject  to  attachment  for  the  father's  debts."  So,  where  one  de- 
livers to  a  workman  materials  to  be  manufactured  ;  the  article 
into  which  the  materials  are  wrought  cannot,  when  finished,  be 
attached  as  the  property  of  the  workman,  even  though  he  should 
have  put  into  it  materials  of  his  own.^ 

1  Killey  v.  Scannell,  12  California,  Ti.  *  Wolfe  v.  Dorr,  24  Maine,  104. 

2  Bond  V.  Ward,  7  Mass.  1-23 ;  Sibley  ^  Horn  i\  Cole,  51  New  Hamp.  287. 

V.    Brown,    15    Maine,    185;    Smith    v.  ^  Moon    v.    Hawks,   2    Aikens,    390; 

Cicotte,    11    Michigan,   383;    Ranlett   v.  Walcot  y.  Ponieroy,  2  Pick.  121. 
Blodgett,  17  Nevv  Hamp.  2'.}8;  Chamber-  "^  Brown  v.  Scott,  7  Vermont,  57. 

lain  y.  Beller,  18  New  York,  115.  ^  Stevens    v.    Briggs,    5    Pick.    177; 

3  Bradford  v.  McLellan,  23  Maine,  302.  Gallup  v.  Josselyn,  7  Vermont,  334. 


CHAP.  X.]       ATTACHMENT    OF    PERSONAL   PROPERTY.  §  256 

§  255.  II.  Requisites  of  a  valid  Attachment  of  Personalty. 
"When  an  attachment  is  delivered  to  an  officer,  no  lien  on  the 
defendant's  property  is  thereby  created,  but  a  levy  is  necessary  ;  ^ 
and  the  first  levy  obtains  the  first  right  to  satisfaction,^  unless,  as 
in  some  States,  all  the  defendant's  creditors  are  allowed  to  come 
in  and  share  equall}'  the  avails  of  the  first  attachment.  Hence 
the  necessity  that  the  officer  should  proceed  at  once  with  the  ex- 
ecution of  the  writ.  And  as  unnecessary  delay  in  completing  the 
attachment  might  open  the  way  for  other  officers,  having  other 
writs,  to  seize  the  property,  the  first  attaching  officer  should  con- 
tinue the  execution  of  the  process,  with  as  little  intermission  as 
possible,  until  his  duty  is  completed. 

§  255  a.  What  will  constitute  a  levy  as  against  the  defendant, 
is  a  different  question  fi-om  what  will  constitute  one  as  against 
third  persons.  A  levy  may  be  good  as  against  the  former,  that 
would  not  be  as  against  the  latter.  But  this  distinction  is  not  based 
upon  any  difference  in  the  legal  requisites  of  a  levy,  but  on  the 
fact  that  the  conduct  of  the  defendant,  either  b}'  positive  or  nega- 
tive acts,  may  amount  to  a  waiver,  or  an  estoppel,  or  agreement 
that  that  shall  be  a  levy  which,  without  such  conduct,  would  not 
be  sufficient.^  In  either  case,  however,  the  general  principle  may 
be  laid  down,  that  the  acts  of  the  officer,  as  to  asserting  his  rights, 
and  devesting  the  possession  of  the  defendant,  should  be  of  such 
character  as  would  subject  him  to  an  action  as  a  trespasser,  but 
for  the  protection  of  the  process.* 

§  256.  An  officer,  in  attaching  personalt}^  must  actually  reduce 
it  to  possession,  so  far  as,  under  the  circumstances,  can  be  done  ;  ^ 
though  in  doing  so,  it  is  not  necessary  that  any  notoriety  should 

1  Ante,  §  221.  Rood,  12  Vermont,  233 ;  Taintor  v.  Wil- 

*  Ante,  §  231  ;  Crowninshield  v.  Stro-  Hams,  7  Conn.  271 ;  Hollister  v.  Goodale, 
bel,  2  Brevard,  80;  Robertson  y.  Forrest,  8  Ibid.  332;  Odiorne  v.  CoUey,  2  New 
Iljid.  4G(i ;  Bethune  v.  (iilison,  Ibid.  501;  Hanip.  Oti;  Huntington  v.  Blaisdell,  Ibid. 
Crocker  y.  Radclille,  3  Ibid.  23.  317;    Dunklee    v.    Fales,    5    Ibid.    527; 

3  Taffts  y.  Manlove,  14  California,  47.  Bryant  v.  Osgood,  52    Ibid.  182;   Ciiad- 

*  Beeknian  v.  Lansing,  3  Wendell,  bourne  v.  Sunnier,  16  Ibid.  129 ;  Blake 
446;  VVestervelt  r.  Pinkney,  14  Ibid.  v.  Ilatcli,  25  Vermont,  655;  Gale  v. 
123;  Camp  v.  Cliamberiain,  5  Denio,  Ward,  14  Mass.  352  ;  Stockton  y.  Downey, 
r.)8  ;  (joode  v.  Longmire,  35  Alabama,  6  Louisiana  Annual,  581  ;  VVoodwortli  v. 
608;  McBurnie  y.  Overstreet,  8  B.  Mon-  Lemmerman,  "J  Ibid.  524;  Learned  v. 
roe,  300;  Allen  u.  McCalla,  25  Iowa,  464.  Vandenburgli,    7    Howard    Pract.    379; 

*  Lane  v.  Jackson,  5  Mass.  157  ;  Ash-  Gates  v.  Flint,  39  Mississippi,  365;  Smith 
niun  V.  Williams,  8  Pick.  402;  Lyon  v.  v.  Orser,  43  Barbour,  187. 

[221] 


§  256  ATTACHIMENT   OF   PERSONAL   PROPERTY.       [CHAP.  X. 

be  given  to  tlie  act,  in  order  to  make  it  effectual.^  What  is  an 
actual  possession,  sufficient  to  constitute  an  attachment,  must  de- 
pend ui)on  the  nature  and  position  of  the  property.  In  general, 
it  may  be  said,  that  it  should  be  such  a  custody  as  will  enable  the 
officer  to  retain  and  assert  his  power  and  control  over  the  prop- 
erty, so  that  it  cannot  probably  be  withdrawn,  or  taken  by 
another,  without  his  knowing  it.^ 

In  Connecticut,  the  doctrine  is,  that,  to  effect  a  valid  attach- 
ment of  goods,  the  officer  must  have  the  actual  possession  of  them, 
as  contradistinguished  from  a  constructive  possession.  The  facts 
of  the  case  were  these :  A.,  having  an  attachment  against  B., 
went  to  levy  it  on  a  barouche  in  B.'s  carriage-house,  and  ob- 
tained, for  that  purpose,  the  key  of  the  house.  C,  having  also 
an  attachment  against  B.,  went  near  the  house,  and  concealed 
himself.  When  A.  opened  the  door,  he  declared  that  he  attached 
all  the  carriage  and  harness  in  the  house ;  but  before  he  actually 
touched  the  carriage,  C.  sprang  in  and  seized  it.  The  court  sus- 
tained the  attachment  made  by  C,  on  the  following  grounds : 
"  The  only  object  of  attachment  is  to  take  out  of  the  defendant's 
possession,  and  to  transfer  into  the  custody  of  the  law,  acting 
through  its  legal  officer,  the  goods  attached,  that  they  may,  if 
necessary,  be  seized  in  execution,  and  be  disposed  of  and  de- 
livered to  the  purchaser.  Hence,  the  legal  doctrine  is  firmly  es- 
tablished, that  to  constitute  an  attachment  of  goods  the  officer 
must  have  the  actual  j^ofisession  and  custody/.  That  the  plaintiff 
was  at  the  door  of  the  carriage-house,  with  a  writ  of  attachment 
in  liis  hand,  only  proves  an  intention  to  attach.  To  this,  no  ac- 
cession is  made  by  the  lawful  possession  of  the  key,  and  the  un- 
locking of  the  door.  Suppose,  what  does  not  appear,  that  the  key 
was  delivered  to  him  by  the  OAvner  of  the  carriage,  that  he  might 
attach  the  property  ;  this  would  be  of  no  account.  He  might 
have  the  constructive  possession,  which,  on  a  sale,  as  between 
vendor  and  vendee,  would  be  sufficient ;  but  an  attachment  can 
only  be  made  by  the  taking  of  actual  possession.  As  little  impor- 
tance is  attached  to  the  unlocking  of  the  door,  and  the  declaration 
that  the  plaintiff  attached  the  carriage.  This  was  not  a  touching 
of  the  property,  or  the  taking  of  the  actual  possession.  The  re- 
moval of  an  obstacle  from  the  way  of  attaching,  as  the  opening 

1  Hemmenway  v.   Wheeler,  14   Pick.  2  Hemmenway  v.   Wheeler,   14  Pick. 

408  ;  Toiiilinsoii  v.  Collins,  20  Conn.  304.     408. 
[222] 


CHAP.  X.]      ATTACHMENT   OF   PEESONAL   PROPERTY.  §  256 

of  the  door,  is  not  an  attachment,  nor  was  the  verbal  declaration. 
An  attachment  is  an  act  done  ;  and  not  a  mere  oral  annunciation. 
From  these  various  acts,  taken  separately  or  conjointly,  the  plain- 
tiff did  not  obtain  the  possession  and  custody  of  the  carriage,  and 
therefore  he  did  not  attach  the  property."  ^ 

The  views  expressed  in  this  case,  it  is  believed,  are  not  sus- 
tained in  an}'^  other  State  ;  but,  on  the  contrary,  the  decisions 
seem  to  be  with  unanimity  the  other  way.  It  has  been  repeatedly 
held,  that  personal  property  may  be  attached  without  the  officer 
touching  it. 

In  Maine,  to  constitute  an  attachment,  it  is  not  necessary  that 
the  officer  should  handle  the  goods  attached,  but  he  must  be  in 
view  of  them,  with  the  power  of  controlling  and  taking  them  into 
his  possession.  Therefore,  where  it  appeared  that  the  officer  went 
upon  premises  of  the  defendant  with  an  attachment,  and  before 
leaving,  declared  to  a  person  who  was  accustomed  to  work  there, 
that  he  had  attached  the  property  there,  and  requested  the  person 
to  forbid  any  one  taking  the  things  away,  but  did  not  give  the 
property  into  the  custody  of  that  person,  and  then  left,  and  did 
not  return  to  take  the  property  into  his  possession  ;  the  court 
held,  that  the  attachment  might  be  sufficient,  if  followed  by  the 
continual  presence  of  the  officer,  or  of  some  one  on  his  behalf.^ 

In  New  Hampshire,  a  valid  attachment  is  not  effected,  unless 
the  articles  are  taken  into  the  officer's  actual  custody,  or  are 
placed  under  his  exclusive  control ;  by  which  actual  custody  and 
exclusive  control  is  not  meant  that  he  must  touch  and  remove 
every  article  before  an  attachment  can  be  deemed  valid,  but  that 
the  articles  must  be  so  within  his  power  as  to  enable  him  to  touch 
or  remove  thera.^  In  a  subsequent  case  in  the  same  State,  where 
an  officer  was  in  a  house  levying  an  attachment  on  furniture,  and 
anolher  officer  entered  a  chamber  of  the  house  not  yet  reached  by 
the  first,  and  attached  the  articles  therein,  the  court  held  the  pro- 
ceedings of  the  first  officer  to  amount  to  an  attachment  of  the 
whole  effects,  and  that  the  second  officer's  attachment  was 
illegal ;  and  they  say  :  "  Tlie  whole  articles  must  doubtless  be 
within  the  power  of  the  officer.  That  is,  they  must  not  be  in- 
accessible to  him  by  their  distance,  or  by  being  locked  up  from 
his  reach  in  an  apartment  not  under  his  control ;  or  by  being  so 

'  Ilollister  v.  Goodale,  8  Conn.  332.  ^  Oiliorne  v.  Colloy,  2  New  Ilanip.  66 ; 

2  Nichols  V.  Patten,  18  Maine,  231.  Morse  v.  liurd,  17  Ibid.  240. 

[1>23]    . 


§  'loij  ATTACHMENT   OF   PERSONAL   PROPERTY.       [CHAP.  X. 

covered  with  oilier  articles,  or  bo  in  the  custoil}'  of  another  per- 
son, that  the  officer  cannot  see  and  touch  theni."^  Again,  the 
same  court  held,  that,  to  make  an  attachment,  the  officer  must 
take  possession  of  the  goods  ;  but  that  it  is  not  necessary  that  the 
goods  should  be  removed  ;  but  the}'  must,  in  all  cases,  be  put  out 
of  the  control  of  the  debtor.^ 

In  Vermont,  it  is  unnecessary  that  the  officer  should  actually 
touch  the  property,  but  he  must  have  the  custody  or  control  of 
it,  in  such  a  way  as  either  to  exclude  all  others  from  taking  it, 
or,  at  least,  to  give  timely  and  unequivocal  notice  of  his  own 
custody.^  Therefore,  where  an  officer  attaching  goods  in  a  build- 
ing, fastened  the  windows,  locked  the  door,  and  took  the  key 
into  his  possession,  it  was  held  a  sufficient  taking  possession  of 
the  goods,  as  respects  subsequent  attachments,  even  though  he 
careless!}''  failed  to  secure  every  avenue  to  the  room,  and  through 
one  unguarded  avenue  another  officer  entered  and  seized  the 
property.* 

In  Massachusetts,  the  necessity  for  an  actual  handling  of  the 
property  in  order  to  effect  an  attachment  is  not  recognized. 
Thus,  where  the  officer  went  with  a  writ  and  took  possession  of 
the  defendant's  store,  and  locked  it  up  ;  it  was  held  to  be  a  suf- 
ficient attachment  of  the  goods  in  the  store,  and  valid  against  a 
subsequent  attachment  or  mortgage  thereof.^ 

In  Delaware,  this  case  arose.  A  constable,  having  executions 
which  came  to  his  hands  at  3  o'clock,  P.M.,  levied  them  upon  per- 
sonal property  of  the  defendant  before  5,  P.M.  On  the  same  day, 
between  i>  and  4,  P.M.,  three  writs  of  attachment  came  to  his 
hands  against  the  same  party,  under  which  he  then  made  inven- 
tories of  the  personalty.  Afterwards,  at  6.30,  P.M.  of  the  same 
day,  other  writs  of  attachment,  in  favor  of  other  creditors, 
against  the  same  defendant,  came  to  the  constable's  hands,  on 
which  no  inventories  were  made  until  after  7.30,  P.M.  It  was  ad- 
mitted that  the  constable  did  not  take  any  of  the  personalty  of 
the  defendant  under  or  by  virtue  of  any  of  the  writs  of  attach- 

'  Huntington    v.     Blaisdell,     2    New  v.  Gooclale,  8  Conn.  332,  is  severely  eon- 

Hanip.  317  ;  Cooper  v.  Newman,  45  Ibid,  deinned. 
33y.  ■•  Newton  v.  Adams,  4  Vermont,  437 ; 

-  Dunklee   v.   Fales,   5    New    Hamp.  Slate  u.  Barker,  26  Ibid.  (547. 
527.  ^  Denny    v.    Warren,    16    Mass.   420; 

3  Lyon  V.  Rood,  12  Vermont,  233.     In  Gordon  c.  Jenney,  Ibid.  465;  Sliepliard  v. 

this  case  the  above-cited  case  of  Holiister  Butterfield,  4    Cusliing,  425;    Naylor  v. 

Dennie,  8  Pick.  US. 
.  [224] 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY.       §  256 

ment  which  came  to  his  hands,  unless  the  making  of  the  inven- 
tories under  those  writs  amounted  in  hiw  to  a  taking  of  the  same, 
and  that  he  never  had  the  property,  or  any  part  of  it,  in  his 
actual  possession  under  any  of  the  writs  of  attachment.  On  the 
same  day,  several  writs  of  execution  against  the  same  defendant 
came  to  the  liands  of  the  sheriff,  the  first  at  6,  P.M.,  and  the  oth- 
ers at  7.30,  P.M.  The  attachment  plaintiffs  afterwards  obtained 
judgments  against  the  defendant,  and  under  executions  issued 
thereon  the  constable  sold  the  attached  property,  and  after  satis- 
fying the  executions  under  which  it  was  originally  seized,  had  in 
his  hands  a  surplus  arising  from  the  sale;  and  the  question  was, 
whether  this  surplus  was  applicable  to  the  attachments  levied  by 
the  constable,  or  to  the  executions  in  the  hands  of  the  sheriff; 
and  this  involved  the  question,  whether  the  attachments  had 
been  legally  levied  at  all.  The  court  held,  that  an  attachment  is 
a  lien  only  from  the  taking  of  the  property  by  the  officer ;  but 
that  an  actual  taking  into  his  exclusive  possession  was  not 
necessary  ;  and  that  the  making  of  an  inventory  of  the  goods  by 
the  officer  under  the  attachment,  ivitli  a  view  to  the  appraisement 
of  them,  as  required  hy  latv,  constituted  a  taking  of  them  in 
contemplation  of  law,  and  from  that  time  the  goods  were  in  the 
legal  custody  and  possession  of  the  constable  under  the  attach- 
ments.^ 

But  in  California,  where  a  sheriff  went,  a  few  minutes  after 
midnight,  to  a  closed  store,  and,  without  obtaining  admittance, 
stationed  himself  at  the  front  door,  and  an  assistant  at  the  back 
door,  so  that  no  one  could  go  in  or  come  out,  but  did  not  declare 
that  he  levied  on  the  contents  of  the  store,  and  did  not  know 
what  the  contents  were  ;  it  was  held,  that  no  levy  was  effected, 
as  against  an  assignment  by  the  defendant  in  insolvency,  made 
after  those  acts  of  the  sheriff,  and  before  he  obtained  an  entrance 
into  the  store.  The  court  said :  "  It  is  too  plain  for  argument 
that  there  can  be  no  levy  where  the  officer  does  not  even  know 
the  sul)ject  of  the  levy.  As  well  might  a  sheriff  stand  in  the 
street  and  levy  on  the  contents  of  a  banking  house,  as  to  stand 
in  a  store-door  at  midnight,  and  claim  that  by  merely  standing 
there,  and  preventing  any  person  from  coming  into  the  store,  he 
had  levied  on  the  contents,  whatever  they  were,  of  the  store  ;  and 

1  Stockley  v.  Wadman,  1  Houston,  350. 

15  [225] 


§  258       ATTACHMENT  OP  PERSONAL  PROPERTY.   [CHAP.  X. 

this  without  having'  any  knowledge  of  the  general  nature  of  the 
stock,  much  less  of  the  particular  description  or  value."  ^ 

§  257.  In  all  such  cases,  however,  if  the  officer  have  not  the 
property  under  his  control,  or,  so  having,  he  aljandon  it,  the  at- 
tachment is  lost.  Tlierefore,  where  an  officer  having  an  attach- 
ment, got  into  a  wagon  in  which  the  defendant  was  riding,  and 
to  which  a  horse  was  harnessed,  and  told  the  defendant  that  he 
attached  the  horse,  and  then  rode  down  street  with  the  defendant, 
without  exercising  any  other  act  of  possession,  and  left  the  horse 
with  the  defendant,  upon  his  promising  to  get  a  receiptor  for  it ; 
the  court  held,  tliat,  as  the  horse  had  not  been  under  the  officer's 
control  for  a  moment,  or  if  it  could  be  considered  that  he  had 
had  an  instantaneous  possession,  it  was  as  instantaneously  aban- 
doned, there  was  no  attachment.^ 

§  258.  With  regard  to  heavy  and  unmanageable  articles,  there 
seems  to  be  no  necessity  for  an  actual  handling  to  constitute  an 
attachment.  Thus,  an  officer  went  with  an  attachment,  within 
view  of  a  quantity  of  haj'^  in  a  barn,  and  declared,  in  the  presence 
of  witnesses,  that  he  attached  the  hay,  and  posted  up  a  notifica- 
tion to  that  effect  on  the  barn-door  ;  and  it  was  held  to  be  a  valid 
attachment  as  against  an  officer  who  had  returned  a  prior  attach- 
ment of  the  hay,  not  evidenced  by  any  act  of  possession.^  So, 
where  an  officer  attached  a  parcel  of  hewn  stones,  lying  scattered 
on  the  ground,  by  going  among  and  upon  them,  and  declar- 
ing that  he  attached  them ;  and  placed  them  in  charge  of  the 
plaintiff,  but  made  no  removal  of  them,  nor  gave  any  notice  to 
any  third  persons  of  the  attachment,  nor  took  any  other  mode  of 
giving  notoriety  to  the  act ;  it  was  held  to  be  a  valid  attachment, 
because  it  was  manifest  that  the  officer  did  not  intend  to  abandon 
the  attachment,  and  that  the  measures  he  took,  considering  the 
bulky  nature  and  the  situation  of  the  property,  were  sufficient.* 
So,  where  an  officer  attached  a  quantity  of  iron  ore  lying  on  the 
surface  of  the  ground,  by  informing  the  clerk  and  workmen  of 
the  defendant  of  the  attachment,  but  did  not  remove  the  ore  ; 
and  in  consequence  of  his  declaration   the  workmen  were  dis- 

1  Taffts  0.  Manlove,  14  California,  47.     408  ;    Polley   v.   Lenox    Iron   Works,  4 

2  French  v.  Stanley,  21  Maine,  512.  Allen,  329 ;  Lewis  v.  Orplieus,  3   Ware, 
»  Merrill  v.  Sawyer,  8  Pick.  397.  143. 

*  Hem  men  way  v.  Wheeler,  14  Pick. 
[226] 


CHAP.  X.]   ATTACHMENT  OF  PERSONAL  PROPERTY.     §  258  a 

missed,  and  the  defendant's  operations  ceased,  and  the  facts  be- 
came generally  known  and  talked  of ;  and  it  appeared  that  the 
removal  of  the  ore  would  have  been  attended  with  great  expense 
and  serious  injury  to  the  property ;  it  was  held,  that  the  attach- 
ment was  valid  ;  that  where  the  removal  of  attached  property 
would  result  in  great  waste  and  expense,  it  may  be  dispensed 
with ;  and  that  in  such  case  the  continued  presence  of  the  officer 
with  the  property,  in  person  or  by  agent,  is  not  necessary  ;  it  be- 
ing sufficient  if  he  exercise  due  vigilance  to  prevent  its  going  out 
of  his  control.^  The  doctrine  thus  stated,  as  dispensing  with  the 
actual  reduction  to  possession  of  ponderous  articles,  was  sought, 
but  unsuccessfully,  to  be  applied  to  an  attachment  of  ripe  corn 
and  potatoes  in  a  field,  of  which  an  officer  returned  an  attach- 
ment, though  he  had  only  gone  into  the  field,  and  appointed  an 
agent  to  keep  the  corn  and  potatoes.  It  was  held,  that  this  was 
no  attachment,  and  that  it  was  the  officer  s  duty  to  have  severed 
the  produce  from  the  soil,  and  reduced  it  to  his  possession.^ 

§  2.58  a.  In  some  States  legislation  has  provided  for  notice  of 
the  attachment  of  ponderous  articles,  so  as  to  dispense  with  the 
necessity  of  their  actual  custody  by  the  officer,  in  order  to  the 
preservation  of  the  lien  of  his  attachment.  In  New  Hampshire, 
for  instance,  a  statute  authorizes  an  officer  attaching  such  prop- 
erty to  "  leave  an  attested  copy  of  the  writ,  and  of  his  return  of 
such  attachment  thereon,  as  in  the  attachment  of  real  estate  [that 
is,  by  leaving  the  same  at  the  office  of  the  town  clerk]  ;  and  in 
such  case  the  attachment  shall  not  be  dissolved  or  defeated  by 
any  neglect  of  the  officer  to  retain  actual  possession  of  the  prop- 
erty." But  to  be  entitled  to  the  protection  of  this  provision,  the 
officer  must  make  such  return  as  will  indicate  specifically  the 
property  he  has  attached,  so  as  to  impart  notice  to  other  officers 
and  attaching  creditors  ;  in  default  of  which  the  leaving  of  the 
copy  of  the  writ  and  return  with  the  town  clerk  will  be  of  no 
avail.  Thus,  where  an  officer  went  into  a  barn  in  which  was  a 
quantity  of  hay,  which  he  saw,  and  put  up  a  paper  in  the  barn 
with  the  following  notice  upon  it :  "I  have  attached  all  the  hay 
in  this  barn  in  which  S.  has  any  interest ;  "  and  then  made  the 
following  return  upon  the  writ :  "  I  attached  all  the  wood,  hay, 

»  Mills  V.  Camp,  14  Conn.  219;  Pond  2  Heard  v.  Fairbanks,  5  Metcalf,  111. 

V.   Skidmore,  40   Il)id.   213;  liicknell  v. 
Trickey,  34  Maine,  273. 

[227] 


§  259       ATTACHMENT  OF  TEESONAL  PEOPERTY.   [CHAP.  X. 

bark,  and  luniLer,  lands  and  tenements,  in  the  town  of  W.,  in 
which  the  within  named  defendant  has  any  right,  title,  interest, 
or  estate ;  and  on  the  same  day  I  left  at  tiie  office  of  the  town 
clerk  of  said  town  a  true  and  attested  copy  of  this  writ,  and  of 
my  return  indorsed  thereon  ; "  it  was  held,  that  the  return  was 
too  indefinite  to  constitute  an  attachment  as  against  a  subsequent 
purchaser  of  the  hay.  "  B}^  the  statute,"  said  the  court,  "a  public 
record  of  the  return  of  the  property  attached  is  made  a  substi- 
tute for  the  retention  of  possession  by  the  officer  or  his  agent, 
and  its  jiurposes  would  not  be  subserved,  nor  its  spirit  maintained, 
by  any  such  effort  at  compliance  with  the  terms  of  the  statute, 
or  b}'  any  such  construction  of  its  provisions,  as  should  fail  to 
furnish  a  subsequent  attaching  creditor,  or  a  purchaser  of  the 
propert}'  from  the  debtor,  substantially  and  practically  the  same 
information  as  would  be  derived  from  knowledge  of  the  officer's 
retention  of  possession  at  common  law."  ^ 

§  259.  The  rule  requiring  the  officer  to  reduce  to  his  possession 
personal  property  attached  by  him,  does  not  extend  to  a  case  in 
which  an  attachment  is  authorized  of  that  which  in  its  nature 
is  incapable  of  being  taken  into  possession.  Such  is  the  case  of 
stock  in  a  bank  or  other  corporation.  There,  it  is  sufficient  for 
the  officer  to  take  the  steps  required  by  the  law  under  which  he 
acts,  and  to  describe  the  property  as  so  many  shares  of  the  par- 
ticular stock  owned  by  the  defendant,  and  a  sale  by  such  a  de- 
scription will  carry  the  title.- 

1  Bryant  v.  Osgood,  52  New  Hanip.  2  Stamford  Bank  v.  Ferris,  17  Conn. 

182.  259. 

[228] 


CHAP.  XI.]       SIMULTANEOUS,    ETC,    ATTACHMENTS.  §  260 


CHAPTER     XL 

SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,   AND    FRAUDULENT 

ATTACHMENTS. 

§  260.  A  COMMON  occurrence  in  the  use  of  the  remedy  by 
attachment  is,  for  a  number  of  writs,  in  favor  of  different  plain- 
tiffs, to  be  phiced,  at  the  same  time,  or  in  quick  succession,  in  the 
hands  of  officers,  against  the  same  defendant,  and  served  on  the 
same  property,  simultaneously,  or  at  short  successive  intervals. 
As  such  cases  usually  occur  when  the  defendant  is  in  failing  cir- 
cumstances, or  is  about  to  commit,  or  has  committed  some  fraud, 
and  the  property  levied  on  is  supposed  to  be  the  only  available 
resource  for  the  satisfaction  of  his  creditors,  it  is  important  to  as- 
certain the  rules  which  are  to  decide  between  interests  which, 
under  such  circumstances,  are  almost  certain  to  come  in  conflict. 
This  subject  is  of  no  importance  where,  as  in  some  States,  the 
first  attachment  holds  the  property,  not  to  the  exclusion  of  all 
subsequent  ones,  but  for  the  benefit  of  all  creditors  of  the 
defendant  who  come  in  and  prove  their  demands,  and  therel)y 
become  entitled  to  share  with  the  first  attacher  the  avails  of  his 
diligence  ;  but  where,  as  in  nearly  all  of  the  States,  the  writs  hold 
in  the  order  of  their  service,  its  importance  is  evident. 

§  260  a.  An  interesting  case,  illustrative  of  this  subject,  oc- 
curred in  California.  At  1.40,  P.M.,  an  action  by  attachment 
was  commenced  by  A.  against  B.,  by  depositing  in  the  clerk's 
office  of  the  court  a  complaint,  affidavit,  and  undertaking,  with 
a  request  that  an  attachment  should  be  issued  forthwith.  There- 
upon A.'s  attorney,  by  whom  those  papers  were  filed,  and  the 
writ  demanded,  left  the  clerk's  office  and  was  absent  forty-five 
minutes.  On  his  return  the  writ  which  he  had  demanded  had 
been  completed,  and  was  immediately,  without  delaying  him, 
placed  in  his  hands.  Meantime,  in  the  attorney's  absence,  and 
while  the  clerk  was  engaged  in  preparing  A.'s  writ,  the  attorney 

[•229] 


§  260  a      SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 


of  C.  came  into  the  office,  and  placed  in  the  clerk's  hands  a  com- 
plaint, affidavit,  and  undertaking,  in  an  action  by  C.  against  B., 
and  also  demanded  an  attachment  forthwith.  He  was  directed 
to  fill  out  the  blanks,  and  did  so,  and  thereupon  the  clerk  signed, 
sealed,  and  delivered  the  same  to  him  at  three  minutes  before 
two  o'clock,  and  at  two  o'clock  the  writ  was  placed  by  C.'s  attor- 
ney in  the  hands  of  the  sheriff;  so  that  C.'s  attachment  was 
issued  and  placed  in  the  hands  of  the  sheriff  twenty-five  minutes 
before  A.'s  attorney  returned  to  the  clerk's  office ;  whereby  C. 
obtained  priority  of  lien  upon  B.'s  effects.  A.  sued  the  clerk 
upon  his  official  bond  for  damages  sustained  by  his  failure  to  per- 
form his  duty  in  the  matter  of  issuing  the  writ  against  B.  The 
court  held,  that  he  could  not  recover,  because,  though  the  clerk 
was  bound  to  issue  writs  in  the  order  in  which  they  are  de- 
manded, yet  as  A.'s  attorney  was  not  present  to  receive  his  writ 
when  it  was  completed,  the  clerk  was  not  bound  in  the  mean 
time  to  delay  the  issuing  of  other  writs  against  the  same 
defendant.^ 


1  Lick  V.  Madden.  36  California,  208. 
Tlie  court  said  :  "  Wiiile  a  clerk  is  bound 
to  issue  writs  in  the  order  in  which  tliey 
are  demanded,  yet  if  the  party  who  makes 
the  prior  demand  is  not  in  attendance  to 
receive  his  writs  as  soon  as  they  are  ready 
for  delivery,  the  clerk  is  not  bound  to  de- 
lay the  issuing  of  other  writs  against  the 
same  party  which  may  have  been  de- 
manded in  the  mean  time.  On  the  con- 
trary, such  delay  would  not  admit  of  legal 
justification.  Having  prepared  for  deliv- 
ery the  writs  first  demanded,  he  is  bound, 
notwithstanding  the  absence  of  tlie  party 
by  wliom  they  have  been  demanded,  to 
proceed  with  reasonable  diligence  to 
comply  with  the  demand  of  the  next 
comer ;  and  if  the  writs  of  tlie  latter  are 
ready  before  the  former  calls  for  his,  he 
is  nevertheless  bound  to  deliver  them  as 
soon  as  they  have  been  prepared.  If  in 
such  a  case  the  first  comer  loses  his  pri- 
ority, such  loss  is  due,  as  the  case  may 
be,  to  his  own  negligence  or  misfortune. 
If,  however,  as  is  found  in  this  case,  the 
clerk  first  issues  tlie  writ  secondly  de- 
manded, he  is,  doubtless,  in  any  event, 
guilty  of  a  technical  breach  of  his  official 
duty;  but  if,  notwithstanding  such  breach, 
he  has  tlie  writ  first  demanded  prepared 
and  ready  for  delivery  when  it  is  called 
[23U] 


for,  we  are  unable  to  perceive  how  tlie 
party  by  whom  it  was  demanded  has  been 
injured  by  the  breach.  The  fact  tliat  suf- 
ficient time  has  elapsed  to  enable  tlie  clerk 
to  prepare  both  writs,  and  deliver  the 
second  before  the  first  is  called  for,  shows 
that  had  he  strictly  followed  the  line  of 
his  duty,  and  pi-epared  the  writs  in  the 
order  in  which  they  were  demanded,  the 
delivery  of  the  second  writ  would  have 
been  likewise  consummated  before  the 
first  was  called  for.  Such  being  the  case 
we  think  it  clear,  that  the  loss  to  A.  of 
the  first  lien  upon  the  goods  of  B.,  was 
not  due  to  the  omission  of  the  clerk  in 
not  completing  his  writ  before  issuing 
that  of  C.  Had,  however,  A.'s  attorney 
returned  before  sufficient  time  had  elapsed 
to  enable  the  clerk  to  issue  and  deliver 
both  writs,  the  contrary  result  would  have 
followed.  .  .  .  That  public  officers  should 
be  held  to  a  faithful  performance  of  their 
official  duties,  and  made  to  answer  in  dam- 
ages to  all  persons  who  may  have  been 
injured  through  their  malfeasance,  omis- 
sion, or  neglect,  to  which  the  persons 
injured  have  in  no  respect  contributed, 
cannot  be  denied.  But  it  is  equally  true 
that  if  the  result  complained  of  would 
have  followed  notwithstanding  their  mis- 
conduct, or  if  the  injured   party  himself 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  262 

§  261.  In  general,  there  is  no  doubt  that  the  law  admits  of  no 
fractions  of  a  day  ;  but  this  rule  is  subject  to  exceptions,  when 
necessary  to  determine  priority  of  right.  The  case  of  several 
attachments  levied  on  the  same  property  on  the  same  day,  is  one 
of  the  exceptions.  There,  it  is  held,  that  they  will  stand  accord- 
ing to  the  actual  time  of  service,  and  if  a  judgment  be  obtained 
by  a  junior  attacher  in  advance  of  a  senior,  it  will  not  destroy 
the  priority  of  lieu  acquired  by  the  latter.^ 

§  262.  The  rights  of  attaching  creditors,  who,  as  against  their 
conunon  debtor,  have  equal  claims  to  the  satisfaction  of  their 
debts,  must  depend  on  strict  law ;  and  if  one,  by  any  want  of 
regularity  or  legal  diligence  in  his  proceedings,  loses  a  priority 
once  acquired,  it  is  a  case  where  no  equitable  principles  can  afford 
him  relief ;  where  the  equities  are  equal ;  and  where  the  right 
must  be  governed  by  the  rule  of  law.^  It  has  therefore  been 
held,  in  a  case  where  the  defendant  was  not  served  with  process, 
that  a  failure  by  an  officer  to  make  return  of  an  attachment  in 
the  manner  provided  by  law,  invalidated  the  attachment  as 
against  a  subsequent  attaching  creditor.^  It  has  also  been  held, 
that,  as  against  subsequent  attaching  creditors,  the  rendition  of  a 
judgment  in  due  form  and  course  of  law,  and  the  issuing  of  an 
execution  on  that  judgment,  and  duly  charging  the  property 
therewith,  are  as  necessary  as  the  attachment  itself  to  entitle  the 
phiintiff  to  priority  of  satisfaction  ;  and  that  any  departure  by 
him  from  the  course  prescribed  by  law  for  establishing  his  right 
to  such  satisfaction  will  discharge  his  lien  under  the  attachment, 
and  subject  the  whole  attached  property  to  the  claims  of  the 
subsequent  attachers.  Hence  it  was  held  in  Vermont,  that  a 
confession  of  judgment  by  the  defendant,  anterior  to  the  time 
when  the  action  would  have  been  regularly  triable,"*  or  an  appear- 

contributed  to  tlie  result  in  any  degree  by  it  is  lield,  tliat  among  all  the  attachments 

his  own  fault  or  neglect,  they  cannot  be  which  go  into  the   sheriffs   hands,  and 

held  responsible.     If  tlie  position  of  the  are  executed,  on  the  same  day,  there  is 

injured  party  would  have  been  just  the  no  preference.     Yelverton   v.  Burton,  26 

same  had  not  the  alleged  misconduct  oc-  Penn.  State,  351. 

curred,  he  lias  no  legal  ground  of  com-  ^  guydam  v.  Huggeford,  23  Pick.  465. 

plaint;  and   if  his  own  conduct,  or  the  See    Southern    Bank    v.    McDonald,    46 

conduct  of  his  attorney,  contributed  to  Missouri,  31 ;  Alley  v.  Myers,  2  Tennes- 

tlie  result,  he  is  in  pari  delicto,  and  the  see  Ch'y,  206. 

law  leaves  him  where  it  finds  him."  ^  Stone  v.  Miller,  62  Barbour,  430. 

'  Tufts  V.  Carradine,  3  Louisiana  An-  *  Hall  v.  Walbridge,  2  Aikens,  215. 
nuai,  430.      In    Tennsylvania,   however, 

[231] 


§  263        SIMULTANEOTJS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 

aiice  and  trial,  resulting  in  a  judgment  for  the  plaintiff,  before  the 
return  day  of  the  writ,'  was  a  dissolution  of  the  plaintiff's  lien 
under  his  attachment,  as  against  subsequent  attachments.  So, 
where  there  were  several  successive  attachments,  and  the  first 
attacher,  having  a  claim  large  enough  to  absorb  all  the  property 
attached,  by  agreement  with  the  defendant  took  all  the  property 
in  satisfaction  of  his  debt,  and  discontinued  his  suit ;  it  was  held, 
that,  as  against  the  subsequent  attachers,  who  perfected  their  lien 
byjndgment  and  execution,  he  acquired  no  title  to  the  property.^ 
It  will  be  remarked,  that,  in  all  these  instances,  there  was  held 
to  be  a  substantial  departure  from  the  legal  mode  prescribed  for 
enabling  a  party  to  obtain  the  benefit  of  his  attachment.  This 
is  a  different  matter  from  mere  irregularities  ;  for  it  is  well  set- 
tled that,  though  such  exist  in  the  proceedings  of  one  attaching 
creditor,  other  attaching  creditors  cannot  make  themselves  par- 
ties to  the  proceedings  for  the  purpose  of  defeating  them  on  that 
account.^ 

§  263.  Neither  the  issue  of  an  attachment,*  nor  its  lodgment 
in  the  liands  of  an  officer,^  confers  any  rights  upon  the  plaintiff 
in  the  defendant's  property.  It  is  only  when  the  writ  is  served, 
that,  as  between  plaintiff  and  defendant,  and  generally  as  be- 
tween different  plaintiffs,  its  lien  takes  effect.^  Hence,  when 
several  attachments  against  the  same  person  are  simultaneously 
served  on  the  same  property,  they  will  be  entitled  to  distribute 
among  them  the  proceeds  of  the  attached  property,  or  the  funds 
in  the  hands  of  garnishees.     This  distribution  is  not  in  propor- 

1  Murray  v.  Eldridge,  2  Vermont,  388.  Bowie,  6  Munford,  176  ;  Wallace  v.  For- 

-  Brandon    Iron    Co.   v.    Gleason,    24  rest,  2  Harris  &  McHenry,  201. 

Vermont,  228  ;  Cole  v.  Wooster,  2  Conn.  '  Crowninsliield  v.  Strobel,  2  Brevard, 

203.  80;    Robertson    v.    Forrest,    Ibid.    466; 

3  Kincaid   v.   Neall,   3   McCord,  201;  Bethune  f.  Gibson,  Ibid.  501 ;  Crocker  v. 

Cambertord  v.  Hall,  Ibid.  345 ;  MctBride  Radcliffe,  3  Ibid.  23. 

y.  Floyd,  2  Bailey,  209 ;  Van  Arsdale  v.  «  Gates    v.   Bushnell,   9    Conn.    530; 

Kruni,  y  Mit^souri,  397 ;  Walker  f.  Hob-  Sewell   v.    Savage,    1    B.    Monroe,    260; 

ens,  4  Kiulianlson,  561;  Ball  v.  Clafflin,  Nutter  v.  Connett,  3  Ibid.  199;  Fitch  v. 

5  Pick.  303  ;  7?^  le  Griswold,  13  Barbour,  Waite,  5  Conn.  117;  (Crowninsliield  v. 
AVI;  Bank  of  Augusta  v.  Jauilon,  9  Strobel,  2  Brevard,  80;  Robertson  v. 
Louisiana  Annual,  8;  Isliam  i\  Ketclium,  Forrest,  Ibid.  466;  Betliune  v.  Gibson, 
46  Barbour,  43 ;  Ward  v.  Howard,  12  Ibid.  501 ;  Crocker  v.  Radclitfe,  3  Ibid. 
Ohio   State,   158;    Rudolf  r.  McDonald,  23;   Pond   v.    Griffin,    1    Alabama,   678; 

6  Nebraska,  163;  Fridenburg  v.  Pierson,  McCobb  v.  Tyler,  2  Crancli,  C.  C.  199; 
18  California,  152.  Grigsley  w.  Love,   Ibid.  413;  Burkhardt 

*  Alears    v.    Winslovv,    1    Smedes    &     r.  McClellan,  15  Abbott  Pract.  243,  note; 
Marshall,     Ch'y,    449 ;     Williamson     v.     Tafi'ts  v.  Manlove,  14  CaUfornia,  47. 
[•232] 


CHAP.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  264 

tion  to  the  amount  claimed  under  eacli  attachment,  but  according 
to  the  number  of  the  writs,  each  being  entitled  to  an  aliquot 
part ;  with  this  qualification,  however,  that,  if  the  share  of  any 
plaintiff  be  more  than  sufficient  to  satisfy  his  demand,  the  surplus 
must  be  approj^riated  to  any  other  of  the  demands  which  is  not 
paid  in  full  by  its  distributive  share.' 

This  rule  was  applied  in  Massachusetts,  not  only  to  the  case 
of  simultaneous  attachments  by  different  officers,^  but  where  the 
writs  were  in  the  hands  of  the  same  officer,  and  were  delivered 
to  him  at  different  times,  l)ut  served  together.^  In  Kentucky, 
however,  it  was  determined,  that,  though  in  the  case  of  distinct 
officers,  the  first  lev}'  gives  the  prior  lien,  yet  where  several  at- 
tachments against  the  same  fund  come,  in  succession,  to  the 
hands  of  the  same  officer  or  his  deputies,  it  is  the  duty  of  the 
officer  to  execute  them  in  the  order  in  which  they  were  received. 
And  although  when  the  process  comes  to  the  hands  of  different 
deputies,  this  order  of  service  may,  without  fault,  happen  to  be 
reversed,  the  court,  having  the  fund  in  its  possession  under  all 
the  attachments,  should  distribute  it  according  to  the  rule  which 
should  have  governed  the  execution  of  the  process.'^ 

§  263  a.  In  cases  of  this  description,  it  is  not  the  legal  right  of 
the  officer  who  made  the  attachments  to  decide  the  distribution 
of  the  fund  between  the  executions  in  the  attachment  suits.  If 
he  assume  to  do  so,  it  is  at  his  own  peril.  His  proper  course  is 
to  refer  the  matter  to  the  court  out  of  which  the  executions  issue. 
In  such  a  case,  where  the  officer  paid  one  execution  in  full, 
thereby  preventing  the  satisfaction  of  the  other,  and  it  appeared 
that  the  judgment  which  was  satisfied  was  invalid,  the  officer  was 
charged  with  the  unsatisfied  part  of  the  other.^ 

§  264.  Where  different  writs  are  in  the  hands  of  the  same  offi- 

1  Sliove  V.   Dow,  1-3  Mass.  529;  Sig-  Freeman  v.  Grist,  1  Devereux  &  Battle, 

ouriiey    v.   Eaton,   14    Pick.    414;  Hock-  217;  Porter  w.  Eartli man,  4  Yerger,  358 ; 

wood  V.  Varnum,  17   Ibid    28'.> ;  Durant  Love  i\  Harper,  4  Uum])lireys,  113. 
V.  Jolmson,  I'J  Ibid.  544;  Davis  v.  Davis,  -  Shove  v.  Dow,  13  Mass.  52U. 

2  Cusbing,  111;  Tburston  v.  Iliintiiigton,  ^  Hockwood  v.  Varnum,  17  Pick.  289. 

17  New  llamp.  438  ;  Campbell  v.  Huger,  *  Kennon    v.   Ficklin,   6    B.    Monroe, 

1   ("owen,  215;  Nutter  v.   Connett,  3  B.  414;    Claj'    w.    Scott,   7    Ibid.    554.     See 

Monroe,  19'J.     Tbis  rule,  however,  docs  Cailalian  r.  IlallowcU,  2  Bay,  8;  Tliurston 

not  obtain  in  Nortii   Carolina  and  Ten-  v.  Huntington,  17  New  llanip.  438. 
nessee,   where  the   distrii>ution   is   made  *  Howard  v.  Clark,  43  Missouri,  344. 

liro  rata.     Hill  v.  Cliild,  3  Devereux,  205; 

[233] 


§  265  a     SniULTANEOUS,   successive,   conflicting,     [chap.  XT. 

cer,  tliere  need  be  no  difficulty  in  ascertaining  whether  their 
service  was  simultaneous ;  but  when  different  officers  are  em- 
ployed, each  intent  on  obtaining  priority,  questions  of  difficulty 
may  occur.  A  singular  case  of  this  description  is  reported  in 
Massachusetts,  where  two  officers  held  attachments  against  the 
same  defendant.  One  returned  his  writ  served  "  at  one  minute 
past  12  o'clock,  A.M.,"  the  other  that  he  served  his  writ  "  imme- 
diately after  midnight "  on  the  same  day.  The  court  held,  that 
each  of  them  made  the  attachment  as  soon  as  it  could  be  done 
after  twelve  o'clock  at  night,  and  that  it  was  impossible  to  say 
that  either  had  the  priority. ^ 

§  265.  Where  several  writs  against  the  same  defendant  are 
served  on  the  same  day,  and  there  is  nothing  in  the  officer's  re- 
turn, nor  on  the  face  of  the  proceedings,  to  show  a  priority  in 
the  time  of  service,  it  may  be  presumed  that  they  were  served 
at  the  same  time  ;  ^  and  where,  in  a  case  of  that  description,  the 
returns  on  all  the  writs,  except  one,  stated  the  time  of  the  day  when 
the  service  was  made,  and  that  one  stated  only  a  service  on  that 
day  ;  it  was  held,  that  it  was  neither  matter  of  legal  presump- 
tion, nor  construction,  that  the  latter  writ  was  served  at  the  same 
time  with  any  of  the  others.  But  parol  evidence  was  admitted 
to  show  at  what  time  of  the  day  specified  in  the  return  the  ser- 
vice was  in  fact  made  ;  such  evidence  being  regarded  as  entirely 
consistent  with  the  return.-"^  In  a  similar  case,  Avhere  an  officer 
returned  an  attachment  as  made  at  12  o'clock,  noon,  on  a  certain 
day,  it  was  considered  prior  in  point  of  time  to  another  attach- 
ment returned  as  made  on  the  same  day,  indefinitely,  without  speci- 
fying any  particular  hour.  And  it  was  held  in  that  case,  that  no 
amendment  of  the  latter  return  was  admissible,  which  would  de- 
stroy or  lessen  the  rights  of  third  persons  previously  acquired.* 

§  265  a.  Where  several  writs  were  executed  about  the  same 
time,  and  so  near  together  that,  but  for  the  terms  of  the  returns 
thereon,  they  would  be  considered  as  having  been  simultaneously 
made,  it  was  held,  in  New  Hampshire,  that  the  officer  might  in- 
dicate the  order  in  which  he  served  them,  by  returning  his  attach- 
ment under  one  as  subject  to  an  attachment  under  another  ;  and 

1  Shove  u.  Dow,  13  Mass.  529.  *  Fairfield  v.  Paine,  23   Maine,  498; 

2  Ginsberg  v.  Pohl,  35  Maryland,  505.      Taylor   v.    Emery,   16   New  Hamp.  359. 
1  Brainard  v.  Bushnell,  11  Conn.  16.         See  Bissell  v.  Nooney,  33  Conn.  411. 

[234] 


CHAP.  XI.]  AND   FRAUDULENT   ATTACHMENTS.  §  26T 

that  if  he  so  return  them  in  the  order  in  which  he  received  them, 
he  gives  them  their  rightful  precedence.^ 

§  266.  When  different  officers  make  attachments  so  nearly  at 
the  same  time  that  it  is  difficult  to  determine  the  question  of  pri- 
ority between  them,  they  may,  it  seems,  settle  the  dispute  by  a 
division  of  the  property,  which  will  be  regarded  as  binding  on 
them,  and  as  precluding  either  from  subsequently  raising  the 
question  of  priority.  And  if,  in  such  case,  one  sell  the  whole  of 
the  property,  and  apply  the  proceeds  to  the  satisfaction  of  the 
execution  held  by  him,  the  other  will  be  entitled  to  maintain 
trover  against  him  for  his  portion,  and  in  order  thereto,  need  not 
prove  that,  in  fact,  his  was  the  first  attachment.^ 

§  267.  Neither  the  actual  custody  nor  the  exclusive  control  of 
the  same  articles  of  personal  property  can,  at  the  same  time,  be 
in  two  distinct  persons ;  and  therefore,  as  possession  of  goods  by 
an  officer  is  an  indispensable  requisite  to  a  valid  attachment  of 
them,  it  follows  that  when  an  officer  has  levied  an  attachment  on 
goods,  and  has  them  in  his  custody,  no  other  officer  can  seize 
them  under  another  writ ;  for  in  order  to  attach,  he  must  lawfully 
take  possession  of  them;  but  this  he  cannot  do,  since  the  first  at- 
taching officer  has,  by  his  prior  attachment,  a  special  property  in 
them,  and  they  are  in  the  custody  of  the  law,  and  it  would  intro- 
duce confusion  to  admit  of  several  officers  contending  for  the  pos- 
session of  attached  goods.'^  And  it  matters  not  that  the  first 
attaching  officer  had  levied  upon  more  than  was  sufficient  to 
satisfy  the  writ  under  which  he  acted.'*  The  same  rule  prevails 
where  the  property  is  not  in  the  actual  custody  of  the  first  officer, 
but  in  the  hands  of  a  receiptor,  to  whom  he  has  intrusted  it.  The 
possession  of  the  receiptor  being  that  of  the  officer,  cannot  be 
violated  by  taking  the  goods  from  his  custody  under  another 
attachment.^ 

1  Tliurston  v,  Huntington,  17  New  16  Vermont,  G19  ;  West  River  Bank  v. 
Hamp.  438.  Gorliani,  88  Ibid.  649;  Lathrop  v.  Blake, 

2  Lyman  v.  Dow,  25  Vermont,  405.  3  Foster,  46  ;  Benson  v.   Berry,  55  Bar- 
^  Ante,   §    251  ;    Watson   v.   Todd,   5     bour,  620 ;    Oldiiam    v.    Scrivener,   3   B. 

Mass.  271 ;  Vinton  y.  Bradford,  13  Ibid.  Monroe,    579;    Robinson    v.    Ensign,    6 

114;  Burlingame    v.   Bell,   16  Ibid.  318;  Gray,   800;    Harbison    v.    McCartney,    1 

Odiorne   v.    Colley,    2  New    Ilamp.    66;  Grant,    172;    Beers   v.   Place,   36   Conn. 

Moore  v.  Graves,  3  Ibid.  408 ;  Walker  v.  578. 

Foxcroft,  2  Maine,  270;  Strout  v.  Brad-  *  Vinton  v.  Bradford,  13  Mass.  114. 

bury,  5  Ibid.  313;  Burroughs  v.  Wright,  ^  Thompson   v.  Marsh,  14  Mass.  269. 

[235] 


§  269        SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,     [CHAP.  XI. 

§  268.  If  an  officer  attach  property,  and  it  is  subsequently 
taken  from  his  possession  by  another  officer,  under  another  at- 
tachment against  the  same  defendant,  and  the  property  is  sold 
and  its  avails  applied  by  the  second  officer  upon  the  execution 
obtained  in  the  second  suit,  and  the  first  officer  sue  the  second 
for  the  trespass,  his  right  to  recover  any  thing  more  than  nominal 
damages  will  depend  on  his  liability  for  the  property  to  the  plain- 
tiff in  whose  favor  he  attached  it ;  and  if  that  liability  has  been 
lost  by  the  failure  of  the  plaintiff  to  perfect  the  lien  of  his  attach- 
ment, there  can  be  no  recovery  against  the  second  attaching 
officer  for  any  thing  more  than  nominal  damages.  In  such  case 
the  first  officer  cannot  recover  upon  the  ground  of  any  liability  on 
his  part  to  the  defendant,  since  the  act  of  the  second  officer  was 
justiiiable,  so  far  as  the  defendant  is  concerned,  and  the  first 
officer  is  not  liable  over  to  the  defendant  for  the  property.^ 

§  269.  If  it  be  desired  to  attach  property  already  attached,  and 
in  an  officer's  custody,  the  writ  should  be  delivered  to,  and  ex- 
ecuted by,  him ;  when  it  will  be  available  to  hold  the  surplus, 
after  satisfying  the  previous  attachment,  or  the  whole,  if  that  at- 
tachment should  be  dissolved.  In  such  case  no  overt  act  on  the 
part  of  the  officer  is  necessary  to  effect  the  second  levy,  but  a  re- 
turn of  it  on  the  writ  will  be  sufficient.^  So,  where  the  property 
is  in  the  hands  of  a  bailee,  the  officer  who  placed  it  there  may 
make  another  attachment,  without  the  necessity  of  an  actual 
seizure,  by  making  return  thereof,  and  giving  notice  to  the 
bailee.^  And  in  Louisiana,  where  attached  property  was  sold  by 
order  of  court  as  perishable,  and  bonds  for  the  price  thereof  were 
taken  by  the  sheriff  from  the  purchasers,  it  was  held,  that  the 
bonds  might  be  levied  upon  by  the  same  officer,  under  an  execu- 
tion in  favor  of  another  creditor,  subject  to  the  attachment  under 

In  Hagan  v.  Lucas,  10  Peters,  400,  prop-  '  Goodrich   v.    Churcli,   20    Vermont, 

erty  liad  heen  levied  on  under  execution  187. 

by  a  sheriff  in  Alabama,  and  claimed  by  -  Turner    v.   Austin,    16    Mass.    181; 
a  third  person  not  a  party  to  tlie  execu-  Tondiiison    v.    Collins,    20    Conn.   364; 
tion,  who  gave  bond  to  redeliver  it  to  the  Rogers  v.  Pairfield,  86  Vermont,  641. 
sheriff  when  the    title    had    been   tried;  ^  Knap     v.    Sprague,    9    Mass.    258; 
and  it  was  held  to  be  so  in  the  custody  Whittier  v.  Smith,  11  Ibid.  211  ;  Odiorne 
of  the   law,  that  it   could   not,   while   in  v.   Colley,  2   NewHamp.  66;  Whitney  y. 
that  condition,  be  taken  under  execution  Farwell,  10  Ibid.  'J;  Tomlinson  v.   Col- 
by the  marshal  of  a  United  States  court.  Uns,  20  Conn.  364. 
See  Roberts  v.  Dunn,  71  Illinois,  46. 
[236] 


CHAP.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  2  <  2 

which  the  sale  was  made ;  the  law  of  that  State  authorizing  a  levy 
on  bonds.^ 

§  270.  These  rules  refer  to  seizures  of  goods,  and  not  to  cases 
where  property  is  attached  by  one  officer,  by  garnishment  of  the 
individual  in  whose  possession  it  may  be,  and  afterwards  by 
another  officer,  by  actual  seizure  and  removal  thereof  from  the 
garnishee's  possession.  This,  though  a  proceeding  not  by  any 
means  to  be  approved,  and  where  the  writs  issue  from  different 
jurisdictions,  wholly  inadmissible,  yet  may,  it  seems,  be  done, 
where  the  two  writs  proceed  from  the  same  jurisdiction.  The 
officer  making  the  seizure  of  the  goods,  will  hold  them  subject  to 
the  prior  lien  of  the  garnishment.  He  must  keep  them  until  the 
result  of  the  garnishment  is  ascertained  ;  when,  if  the  garnishee 
be  charged  in  respect  of  them,  the  officer  will  be  bound  to  restore 
them  to  him  and  suffer  them  to  be  sold ;  and  if  he  fail  to  do  so 
he  will  be  liable  to  the  garnishee,^  or  to  the  plaintiff  in  the  gar- 
nishment.^ 

§  271.  If  an  officer  suffer  his  possession  of  attached  property  to 
be  lost,  it  may  be  attached  by  another  officer,  though  the  latter 
may  be  aware  of  the  former  attachment  having  been  made,  if  his 
knowledge  extend  not  beyond  that  fact.*  For  it  does  not  follow, 
that,  because  he  knows  an  attachment  was  at  one  time  made,  he 
knows  that  it  still  exists ;  on  the  contrary,  he  may  well  infer, 
from  finding  the  property  no  longer  in  the  possession  of  the 
officer  who  first  attached  it,  that  the  prior  attachment  had  been 
discharged.  But  if  he  know  that  there  is  a  subsisting  attach- 
ment,—  although  the  defendant  might,  at  the  time,  by  the  per- 
mission of  the  bailee,  to  whom  the  property  had  been  intrusted, 
be  in  possession  of  it,  —  he  cannot  acquire  a  lien  by  attaching  it.^ 
After  he  has  made  a  levy,  however,  notice  to  him  that  a  prior 
attachment  exists  will  not  affect  the  validity  of  the  levy.^ 

§  272.  The  existence  of  the  proceeding  by  attachment  could 
hardly  fail  to  give  rise  to  fraudulent  attempts  to  obtain  prefer- 

1  Hoy  V.  Eaton,  26  Louisiana  Annual,  *  Cliaflbourne    v.    Sumner,    16    New 

169.  Hanip.  l'2t). 

'-'  Burlingame   v.   Bell,  16  Mass.  318;  ^  Bajrley  v.  White,  4  Pick.  395;  Young 

Swett  V.  Brown,  5  Pick.  178.  v.  Walker,  12  New  Hamp.  502;  Mor.se  v. 

3  Kockwood  V.  Varnum,  17  Pick.  289.      Smith,  47  Ibid.  474. 

6  Bruce  v.  Holden,  21  Pick.  187. 
[237] 


§  274        SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 

ence,  where  the  propert}^  of  a  debtor  is  insufficient  to  satisfy  all 
the  attachments  issued  against  him.  When  it  transpires  that  there 
are  circumstances  justifying  resort  to  this  remedy,  the  creditors  of 
an  individual  usually  press  forward  eagerly  in  the  race  for  prece- 
dence, sometimes  to  the  neglect  of  important  forms  in  their  pro- 
ceedings, and  sometimes  without  due  regard  to  the  rights  of 
others.  On  such  occasions,  too,  notwithstanding  the  safeguards 
generally  thrown  around  the  use  of  this  process,  and  in  violation 
of  the  sanctity  of  the  preliminary  oath,  it  has  been  found  that 
men,  in  collusion  with  the  debtor,  or  counting  on  his  absence  for 
impunity,  have  attempted  wrongfully  to  defeat  the  claims  of 
honest  creditors, by  obtaining  priority  of  attachment,  on  false  de- 
mands. There  is,  therefore,  a  necessity — apparent  to  the  most 
superficial  observation  —  for  some  means  by  which  all  such  at- 
tempts to  overreach  and  defraud,  through  the  instrumentality  of 
legal  process,  may  be  summarily  met  and  defeated.  Hence  pro- 
vision has  been  made  in  the  statutes  of  some  States  for  this  ex- 
igency ;  but  where  such  is  not  the  case  the  courts  have  broken 
the  fetters  of  artificial  forms  and  rules,  and  attacked  the  evil  with 
commendable  spirit  and  effect. 

§  273.  As  before  remarked,^  whatever  irregularities  may  exist 
in  the  proceedings  of  an  attaching  creditor,  it  is  a  well-settled 
rule  that  other  attaching  creditors  cannot  make  themselves  par- 
ties to  those  proceedings,  for  the  purpose  of  defeating  them  on 
that  account.^  Nor  can  a  sul)sequently  attaching  creditor  take  ad- 
vantage of  any  waiver  made  by  the  attachment  defendant,  which 
causes  no  substantial  injustice  to  such  creditor.^  But  where  an  at- 
tachment is  based  on  a  fraudulent  demand,  or  one  which  has  in 
fact  no  existence,  it  is  otherwise;  as  will  appear  from  a  review  of 
the  action  of  courts  of  a  high  order  of  learning  and  ability. 

§  274.  In  North  Carolina,  it  was  held,  in  the  case  of  several 
attachments  against  the  same  defendant,  levied  on  the  same  prop- 
erty, that  a  junior  attacher  could  not  impeach  a  judgment  obtained 

1  Ante,  §  262.  412 ;    Isliam    v.   Ketchum,   46   Ibid.   43  ; 

'^  Kincalil   v.   Neall,   3   McCord,   201 ;  Bank  of  Augusta  v.  Jaudon,  9  Louisiana 

Camberford  v.  Hail,  Ibid.  345;  McBride  Annual,   8;    Fridenburg   v.   Pierson,   18 

V.  Floyd,  2  Bailey,  209;  Van  Arsdale  v.  California,    152;    Ward    v.    Howard,   12 

Krum,  9  Missouri,  397 ;  Walker  v.  Rob-  Ohio   State,   158 ;  Rudolf  v.  McDonald, 

erts,  4  Richardson,  501  ;  Ball  v.  Claflin,  6  Nebraska,  163. 

6  Pick.  303  ;  In  re  Griswold,  13  Barbour,  »  Rudolf  v.  McDonald,  6  Nebraska,  163. 
[238] 


CHAP.  XI.]  AND   FRAUDCTLENT   ATTACHMENTS. 


275 


by  a  senior  attacher,  on  the  ground  that  when  the  attachment  of 
the  latter  was  obtained,  the  defendant's  debt  to  him  was  not  due  ;i 
and  in  Iowa,  that  a  junior  attacher  could  not  intervene  in  a  prior 
attachment  suit,  to  show  that  it  was  prosecuted  b}^  collusion  be- 
tween the  parties  thereto,  for  the  purpose  of  hindering,  delaying, 
and  defrauding  the  defendant's  creditors ;  but  that  relief  in  such 
case  could  only  be  administered  by  a  court  of  equity.^  But 
these  decisions  are  inconsistent  with  the  general  current  of  de- 
cision elsewhere,  as  we  shall  now  proceed  to  show. 

§  275.  In  New  Hampshire,  so  far  as  we  have  been  enabled  to 
discover,  there  is  no  statute  authorizing  an  attaching  creditor  to 
impeach  the  good  faith  of  previous  attachments ;  but  a  practice 
prevails  there,  which  effectually  opens  the  door  for  such  salutary 
investigations  ;  as  is  exhibited  by  the  following  case.  One  sued 
out  an  attachment,  and  caused  it  to  be  levied.  Afterwards  cred- 
itors of  the  same  defendant,  who  had  subsequently  caused  the 
same  property  to  be  attached,  suggested  to  the  court,  that  the 
suit  of  the  prior  attacher  was  prosecuted  collusively  between  him 
and  the  defendant,  for  the  purpose  of  defrauding  the  creditors  of 
the  latter,  and  that  there  was,  in  fact,  nothing  due  from  the  de- 
fendant to  the  plaintiff.  Thereupon,  —  the  creditors  making  the 
suggestion,  having  given  security  to  the  plaintiff  to  pay  all  such 
costs  as  the  court  should  award  on  account  of  their  interference 
in  the  suit,  —  the  court  ordered  that  the  plaintiff  should  make  his 
election  to  dissolve  his  attachment,  or  consent  to  try,  in  an  issue 
between  him  and  the  creditors,  the  question  whether  his  suit  and 
attachment  were  collusive.  The  plaintiff  elected  the  latter, 
and  an  issue  was  formed  for  the  purpose,  between  the  plaintiff  and 
the  creditors,  and  tried  by  a  jury,  who  found  that  the  suit  was 
prosecuted  collusively,  for  the  purpose  of  defrauding  creditors. 
The  court  then  ordered  all  further  proceedings  to  be  stayed  ;  from 
which  order  the  plaintiff  appealed  to  the  Superior  Court.  That 
court,  in  sustaining  the  appeal,  differed  from  the  court  below  only 
as  to  the  manner  of  arriving  at  the  result ;  and  held,  that  if  the 
creditors  should  give  security  to  pay  all  the  costs  which  the  plain- 
tiff might  recover,  they  would  be  permitted  to  defend  in  the  name 
of  the  defendant?     Afterwards  the  same  court  referred  to  this  as 

1  Harrison    v.    I'ender,    Busbee,   78 ;  2  Whipple  v.  Cass,  8  Iowa,  12(). 

Bank  of  Fayette ville  v.  Spurling,  7  Jones,  »  Buckman  v.  Buckman,  4  New  Hamp. 

398.  319. 

[239] 


§2(0        SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 

a  verv  common  practice,  and  as  in  general  the  only  mode  in  which 
a  fraudulent  attaclnnent  could  be  defeated;^  and  in  a  subsequent 
case  held  it  to  be  available,  as  well  in  cases  of  garnishment,  as  in 
those  of  levy  on  specific  property.^  It  was  also  held  by  that 
court,  that  a  subsequent  attacher  might  move  to  dismiss  a  prior 
attachment,  on  the  ground  that  there  was  no  such  person  as  the 
plaintiff  therein.''^ 

In  South  Carolina,  by  the  proceeding  in  attachment,  the  funds 
of  the  absent  debtor  are  brought  into  court,  and  distril)uted 
among  the  several  attaching  creditors ;  and  a  judgment  in 
attachment  serves  no  other  purpose  than  to  ascertain  the  amount 
of  the  plaintiff's  claim  on  the  attached  property,  by  establishing 
his  demand  against  thp  absent  debtor  ;  and  no  execution  can  be 
issued  on  the  judgment.  When  the  attached  fund  is  distributed, 
the  judgment  is  functus  officio,  unless  the  defendant  shall  have 
entered  special  bail,  or,  under  the  Act  of  1843,  executed  a  war- 
rant of  attorney  and  been  admitted  to  defend  the  action,  on  the 
conditions  prescribed  by  the  Act."*  There  it  is  settled,  that  in 
making  the  distribution  of  the  moneys  arising  from  the  attach- 
ments, the  court  can  and  should  inquire  into  the  several  causes  of 
action,  and  may  inspect  its  judgments  to  preventfraud  and  injustice. 
In  effecting  this,  the  consent  or  opposition  of  the  parties  to  the 
judgment  is  disregarded,  for  they  may  combine  to  effect  the 
fraud.  The  acquiescence  of  the  defendant  in  the  plaintiff's 
illegal  proceedings  affords  no  protection  against  an  inquiry  into 
tlie  judgment,  when  that  is  necessary  for  the  protection  of  the 
rights  of  other  creditors.  Therefore,  where  an  attachment 
appears  to  have  issued  on  a  debt  not  due,  it  will  be  set  aside 
in  favor  of  a  junior  attachment  upon   a   debt  due.^      And  the 

'  Webster  i'.  Harper,  7  New  Hamp.  came  lefore  it  between  conflicting  attach- 

594 ;  Pike  v.  Pike,  4  Foster,  384.  ing  creditors,  wliere  the  claim  of  one  was 

■^  Blaisdell  v.  Ladd,    14   New    Hamp.  resi.sted  by  tiie  others,  because  it  embraced, 

129.     See  Harding  v.  Harding,  25   Ver-  besides  a  debt  actually  due,  an  amount 

mont,  487,  for  the  practice  in  such  cases,  intended  to  cover  and  secure  a  liability 

as  regulated  by  statute  in  Vermont.  which  the  plaintiff  was  under  as  an  in- 

^  Kimball    v.     Wellington,    20    New  dorser  for  the  accommodation  of  the  de- 

Hamp.  439.  fendant,   decided  tliat,    in    the    absence 

*  Walker   v.  Roberts,   4   Richardson,  of   fraud,    such  a  combination  of  claims 

561.  did  not  make  the  attachment  void,  and 

5  Walker  v.   Roberts,   4    Richardson,  that  the  attachment  should  be  sustained 

.561  ;  Ralph  v.  Nolan,  1   Rice's  Digest  of  as  to  the  debt  really  due,  but  not  as  to 

8.  C.  Reports,  77.     The  Supreme  Court  the   rest.      Ayres   v.   Hasted,   15    Conn, 

of  Connecticut,  however,  in  a  case  which  504. 
[240] 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS. 


275 


same  position  was  sustained  in  California,^  Mississippi,^  and 
Indiana.^ 

Tlie  Court  of  Appeals  of  Virginia  have  taken  the  same  salutary- 
course,  and  held  that  a  junior  attaching  creditor  ma}^  come  in 
and  defend  against  a  senior  attachment,  by  showing  that  the  debt 
for  which  the  senior  attachment  was  taken  out  had  been  paid.* 

In  Georgia,  this  subject  received  a  full  examination,  and  it  was 
held,  upon  general  principles,  and  without  any  aid  from  statutory- 
provisions,  that  a  judgment  in  an  attachment  suit  may  be  set 
aside,  in  a  court  of  law,  upon  an  issue  suggesting  fraud  and  want 
of  consideration  in  it,  tendered  by  a  junior  attaching  creditor  of 
the  common  defendant.^ 


1  Patrick  v.  Montader,  13  California, 
434 ;  Davis  v.  Eppinger,  18  Ibid.  378. 

-  Henderson  v.  Tiiornton,  37  Missis- 
sippi, 448. 

3  United  States  Express  Co.  v.  Lucas, 
36  Indiana,  361  ;  Lytle  v.  Lytle,  37  Ibid. 
281. 

*  McCluny  v.  Jackson,  6  Grattan,  96. 

5  Smitli  V.  Gettinger,  3  Georgia,  140. 
Tlie  case  arose  upon  a  motion  by  tlie 
junior  judgment  creditor  to  set  aside  tlie 
senior  judgment,  for  alleged  want  of  con- 
sideration or  cause  of  action.  The  whole 
facts  are  best  shown  in  the  opinion  of  the 
court,  delivered  by  Ni.sbet,  J. 

"  Upon  a  rule  against  tlie  slieriff  for 
the  distrii)ution  of  money  raised  by 
attachment,  the  plaintiff  in  error,  holding 
an  attachment  lien,  junior  to  that  of  the 
defendants,  sought  to  set  aside  tlieir  lien. 
The  attachment  claim  of  both  parties  has 
been  reduced  to  judgment.  For  the  pur- 
pose of  vacating  the  judgment  of  tlie  de- 
fendants, and  thereby  defeating  their 
older  lien,  the  plaintiff  in  error  tendered 
to  them  in  the  court  below  the  following 
issues  :  — 

"1.  That  G.  &  B.  (the  defendants  in 
error)  have  no  judgment  against  H.  (the 
defendant  in  attacluiient),  good  and  sufH- 
cient  in  law  ;  nor  did  G.  &  15.  have  at  the 
time  of  suing  out  their  attachment  any 
cause  of  action  against  said  II.  as  alleged. 

"2.  That  said  judgment  in  favor  of 
said  G.  &  B.,  had  upon  such  attachment, 
is,  and  was,  witiiout  adequate  considera- 
tion, and  therefore  void  as  to  said  S.  (the 
plaintiff  in  error). 

"  3.  That  the  attachment  in  favor  of 


G.  &  B.  was  sued  out  on  a  note  made  by 
one  M.,  and  not  by  the  defendant  H.,  and 
that  said  judgment  on  said  attachment 
was  had  and  founded  on  said  note  made 
b}'  said  M.,  and  that  no  other  evidence 
besides  said  note  was  produced  to  the 
jury  who  found  said  verdict  in  favor  of 
G.  &  B. ;  and  that  therefore  said  judgment 
and  attachment  are  of  none  effect  as 
against  said  S. 

"  The  defendants  in  error  demurred  to 
these  issues,  and  the  court  sustained  the 
demurrer;  to  which  decision  the  plaintiff 
in  error  excepts,  and  upon  it  assigns  error. 
The  questions  made  by  the  record  appear 
to  be  tliese,  to  wit :  '  is  It  competent  for  a 
plaintiff  in  attachment,  ho/dinf/  a  judgment 
and  an  attachment  lien  i^oitni/er  than  the  judg- 
ment and  attachment  lien  of  another  plaintiff 
in  attachment,  against  the  same  deferdant,  to 
set  aside  the  older  lien  and  judgment,  upon 
the  ground  of  want  of  consideration  for  that 
judgment,  or  upon  the  ground  of  fraud  in  the 
judgment ;  and  if  it  is,  can  it  lie  done  hy  mo- 
tion, and  issue  tendered  at  law  ?  ' 

"  The  general  rule  as  to  the  effect  of 
judgments  is,  that  they  are  conclusive 
upon  parties  and  privies.  Parties  are  all 
such  persons  as  were  directly  interested 
in  the  subject-matter,  had  a  rigjit  to  make 
defence,  to  adduce  testimony,  to  cross- 
examine  witnesses,  to  control  the  pro- 
ceedings, and  to  appeal  from  the  juilg- 
ment.  Privies  are  all  persons  who  are 
represented  by  the  parties  and  claim  un- 
der them,  all  who  are  in  privity  with  the 
parties ;  the  term  privity  denoting  nat- 
ural or  successive  relationship  to  tlie  same 
rights  of  property.  All  persons  not  par- 
16  [241] 


§  275         SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,     [CHAP. 


In  New  Yoilv,  tlie  following  case  is  reported.  A.  issued  an  at- 
taeliuient,  and  caused  it  to  be  levied  on  property  of  B.,  owned 
b}'  hiui  and  a  partner,  not  a  defendant  in  that  action,  constituting 
the  firm  of  B.  &.  Co.  Thereupon  B.  requested  D.,  a  creditor  of 
the  firm,  to  accept  a  confession  of  judgment  from  himself  and  co- 
pai-tner,  and  levy  on  the  attached  property,  thus  gaining  a  prior 
right  over  A.  This  judgment  was  set  aside  by  the  court,  as  be- 
ing intended  to  defraud  creditors.  Thereupon  D.  issued  an 
attachment  on  the  partnership  debt,  and  levied  it  on  the  property 
already  attached ;  having  done  which,  he  took  no  further  step  in 
the  action  for  more  than  four  months ;  thus  leaving  his  attach- 
ment dormant,  and  apparently  to  be  used  only  against  other 
creditors.  After  the  lev}'  of  D.'s  attachment,  he  went  on  selling- 
goods  to  B.  &  Co.,  and  required  and  obtained  security  on  those 
sales.     These  facts,  taken  in  connection  with  the  design  of  the 


ties  or  privies  are  regarded  as  strangers. 
Strangers  are  not  concluded  by  a  judg- 
ment.    Brown  v.  Chaney,  1  Georgia,  410. 

"  Without  going  further  into  tlie  gen- 
eral doctrines  upon  tiiis  subject,  we  pro- 
ceed to  say,  that  the  plaintiff  in  error  was 
not  a  party,  nor  a  privy,  to  the  judgment 
or  attachment  rendered  in  favor  of  G.  and 
B.  against  H.  He  had  no  power,  in  liis 
own  right,  to  make  a  defence  against  it,  to 
adduce  testimony,  to  examine  witnesses, 
to  control  the  proceedings,  or  to  enter  an 
apjieal. 

"  The  plaintiff  in  error  being  a  stranger 
tlien  to  this  judgment,  it  is  scarcely  neces- 
sary to  adduce  authorities  to  demonstrate 
Ills  right  to  set  it  aside,  if  prejudicial  to  his 
interest, /'^r/muc?.  Nor  is  it  any  the  more 
questionable,  that  he  may  set  it  aside  as 
being  wholly  wilhont  consideration.  But 
there  are  some  authorities  which  relate 
more  particularly  to  attachments,  which 
have  a  direct  relevancy  to  this  case.  [The 
court  then  review  the  cases  on  this  sub- 
ject in  Massachusetts  and  Maine,  and 
proceed.] 

"  These  principles  and  these  author- 
ities establish  that  this  attachment  may 
be  vacated,  and  also  the  judgment  which 
is  founded  on  it,  for  fraud, —  for  a.ny  thing 
that  amounts  to  a  fraud  upon  the  rights 
of  other  creditors,  whether  the  defendant 
be  a  party  to  the  fraud  or  not.  It  was 
sought  to  be  done  in  this  case  by  an  issue 
at  law,  before  a  jury.  Can  it  be  so  done  ■? 
£242] 


is  the  remaining  inquiry.  That  it  may 
be  done  by  a  proceeding  in  equity,  by  a 
creditor  whose  debt  is  not  reduced  to 
judgment,  even,  I  presume  there  is  no 
doubt.  It  may  be  conceded,  for  it  has 
been  so  ruled,  particularly  in  South  Car- 
olina, that  a  creditor  whose  debt  is  not 
reduced  to  judgment,  cannot,  upon  mo- 
tion, set  aside  a  judgment  in  attachment, 
for  irregularity.  In  this  case  the  debt  of 
the  objecting  creditor  is  in  judgment :  he 
also  has  a  lien  upon  the  fund  in  the  hands 
of  the  court  for  distribution.  JSothing  is 
more  common  in  our  courts,  upon  the 
distribution  of  money,  than  upon  tiie  sug- 
gestion by  one  holding  a  junior  lien  that 
an  older  e.xecution  has  been  paid,  to  send 
that  fact  to  be  tried  by  a  jury  at  law. 
Why  may  not  a  suggestion  that  there  is 
fraud  in  the  judgment,  be  tried  in  the 
same  way  ?  It  is  not  enough  to  say,  that 
the  party  has  a  remedy  in  equity  ;  for 
over  questions  of  fraud,  the  jurisdiction, 
by  express  statute,  and  indeed  by  the 
general  law,  in  courts  of  law  and  equity, 
is  concurrent.  We  think  it  is  at  the  op- 
tion of  the  party  to  move  at  law  or  go 
into  equity.  If  he  chooses  to  abide  the 
rules  (jf  the  law,  the  risk  is  his  ;  the  court 
has  no  right  to  turn  him  away.  In  South 
Carolina,  it  has  been  determined  that  a 
judgment  will  be  set  aside  at  tlie  instance 
of  a  creditor,  upon  an  issue  of  fraud  be- 
fore a  court  of  law." 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  276 

previous  confession  of  judgment,  were  held  sufficient  to  justify 
the  inference  that  D.'s  attachment  was  levied,  not  to  secure  the 
debt  due  him,  but  to  hinder  and  delay  the  collection  of  A.'s  de- 
mand, and  that  D.'s  attachment  would  be  dropped  if  A.'s  claim 
were  out  of  the  way ;  and  the  court,  acting  on  this  inference,  on 
motion  vacated  D.'s  attachment.^ 

In  Michigan,  where  a  plaintiff  took  judgment  for  the  demand 
upon  which  his  attachment  was  obtained,  and  also  for  another 
demand  which  became  due  after  his  suit  was  instituted ;  it  was 
held,  that  his  judgment  was  fraudulent  as  against,  and  was  post- 
poned to  the  claim  of,  a  subsequent  attaching  creditor.^ 

In  Ohio,  the  right  of  a  subsequent  attacher  to  object  to  a  prior 
attachment  on  the  ground  that  the  cause  of  action  therein  is  one 
for  which  an  attachment  is  not  allowed  by  law,  was  recognized  ; 
but  the  court  seemed  to  consider  that  this  right  could  not  be 
exercised  until  the  question  of  the  final  disposition  of  the  attached 
fund  among  the  attachers,  after  all  had  obtained  judgments, 
should  come  before  the  court.^ 

These  cases,  proceeding  upon  principles  of  strict  right  and  jus- 
tice, and  fulfilling  the  law's  aversion  to  every  species  of  collusion 
and  fraud,  it  is  to  be  hoped  will  be  regarded  as  authority  in  all 
other  courts,  and  lead  to  the  general  adoption  of  a  practice  which 
thus  summarily  assails  an  evil  that  cannot  be  so  effectively  reached 
by  any  other  means. 

§  276.  Besides  the  remedy  afforded  in  the  mode  pointed  out  in 
the  preceding  section,  there  is  no  doubt  that  an  attaching  cred- 
itor, injured  by  a  fraudulent  attachment,  may  maintain  an  action 
for  the  injury,  either  against  the  plaintiff  therein,  or  the  officer 
who  made  it  with  knowledge  of  its  fraudulent  character.  Thus, 
where  officer  A.,  on  Saturday  afternoon,  attached  goods  in  a 
store,  and  removed  part  of  them  to  another  building,  and  then 
closed  and  locked  the  store,  and  took  the  key  away  ;  and  early 
on  Monday  morning  officer  B.  called  on  the  defendant  with  an- 
other attachment,  and  the  defendant  showed  him  the  goods,  and 
B.  tliereupon  attached  them,  knowing  the  existence  of  A.'s  at- 
tachment ;  and  A.  sued  B.,  in  trover,  for  the  value  of  the  goods  ; 
it  was  held,  that  B.'s  attaching  the  goods  with  the  defendant's 

1  Reed  v.  Ennis,  4  Abbott  Pract.  39G.  »  Ward   v.   Howard,    12   Ohio    State, 

'•2  Hale  V.  Chandler,  3  Michigan,  631.        158. 

[243] 


§  278         SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI 

assistance  showed  collusion  to  defeat  the  first  attachment,  and 
that  fraud  was  a  necessary  inference  from  the  facts,  and  that  the 
action  was  maintainable.^ 

Of  the  same  character  is  the  following  case:  A.  &  B.,  separate 
creditors  of  C,  sued  out  attachments  against  him,  and  levied 
them  on  his  property.  Afterwards  D.  obtained  an  attachment 
against  C,  and  the  officer  returned  a  levy  on  the  same  property, 
subject  to  the  attachments  of  A.  &  B.  At  a  subsequent  time 
A.  &  B.  were  desirous  that  the  property  should  be  sold  on  their 
writs,  but  D.  gave  written  notice  to  the  officer  that  he  should  re- 
sist the  demands  upon  which  the  attachments  of  A.  &  B.  were 
founded,  as  being  fraudulent,  and  that  he  should  object  to  the 
sale  of  the  goods  until  judgment  should  be  recovered  in  due 
course  of  law,  and  the  goods  be  sold  on  execution,  and  that  if 
the  officer  should  sell  the  goods  on  the  writs,  it  would  be  at  his 
peril.  The  officer,  notwithstanding,  sold  the  property,  and  when 
A.  &  B.  obtained  judgments,  appropriated  the  proceeds  to  the 
satisfaction  thereof,  leaving  nothing  to  satisfy  D.'s  claim ; 
whereupon  D.  brought  an  action  on  the  case  against  the  officer 
for  failing  to  satisfy  his  execution.  On  the  trial  it  appeared,  that 
in  the  action  instituted  by  A.  there  were  two  demands,  one  of 
which  was  just,  the  other  without  any  consideration,  and  fraudu- 
lent. It  was  held,  that  embracing  this  fraudulent  demand  in  the 
suit  made  the  whole  action  void  as  to  D.'s  right  as  an  attaching 
creditor,  and  that  the  officer  was  liable  to  D.^ 

§  277.  An  action  on  the  case  for  conspiracy  also  lies  in  favor 
of  a  creditor,  against  his  debtor  and  a  third  person,  who  have 
procured  the  property  of  the  debtor  to  be  attached  in  a  suit  for 
a  fictitious  debt,  and  applied  to  the  payment  of  the  judgment 
obtained  in  the  action,  in  order  to  prevent  creditors  from  obtain- 
ing payment  out  of  the  pioperty  ;  the  creditor  having  subse- 
quently attached  the  same  goods,  and  not  being  able  to  procure 
payment  of  his  debt,  in  consequence  of  the  prior  attachment ; 
and  the  debtor  being  insolvent.^ 

§  278.  In  a  statutory  proceeding  in  Massachusetts,  taken  by  an 
attaching  creditor,  to  avoid,  as   fraudulent,   a  previous  attach- 

1  Denny  v.  Warren,  16  Mass.  420.  ^  Adams  v.  Paige,  7  Pic-k.  542. 

2  Kairfield  v.  Baldwin,  12  Pick.  388. 

[244] 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  279 

ment,  an  important  question  arose,  in  connection  with  the  admis- 
sibility in  evidence,  on  behalf  of  the  first  attacher,  of  the 
declarations  of  the  defendant,  made  after  the  suit  of  the  first 
attacher  was  brought,  that  his  demand  was  bond  fide  and  for  a 
valuable  consideration.  Such  declarations  were  held  to  be  ad- 
missible, on  the  following  grounds.  "  The  party  thus  admitted 
[to  contest  the  previous  attachment]  is  in  fact  adversary  in  the 
suit  to  both  plaintiff  and  defendant,  for  his  interposition  is  bot- 
tomed upon  a  supposed  confederacy  between  them  to  defraud 
him  and  other  creditors,  by  a  false  claim  and  attachment,  upon 
which  the  property  is  to  be  withdrawn  from  the  attachment  of 
bond  fide  creditors.  In  this  state  of  the  controversy,  it  would 
seem  that  the  declarations  or  confessions  of  either  of  the  parties 
against  whom  the  fraud  is  alleged,  ought  not  to  be  admitted  to 
repel  the  charge.  And  yet  it  is  obvious  that  a  hoyid  fide  creditor 
who  has  made  a  just  attachment  may  be  injured,  if,  by  reason  of 
the  admission  of  a  third  party  into  the  suit,  he  is  to  be  deprived 
of  evidence  which  he  would  be  entitled  to,  if  no  one  had  inter- 
posed between  him  and  the  debtor.  There  may  be  collusion 
between  the  debtor  and  the  second  attaching  creditor  to  defraud 
the  first,  and  this  kind  of  fraud  is  quite  as  easy  to  be  practised  as 
the  other.  The  debtor  may  deny  the  validity  of  the  first  cause 
of  action,  for  the  purpose  of  favoring  the  second  attachment,  and 
the  first  attaching  creditor  ought  to  be  allowed  the  benefit  of  any 
acknowledgment  made  by  the  debtor,  it  being  often  difficult  to 
furnish  direct  pi'oof  of  the  consideration  of  a  note  or  other  con- 
tract. .  .  .  Whatever  the  admission  of  the  debtor  may  avail,  the 
plaintiff  is  entitled  to  the  benefit  of.  It  probably  will  avail  little 
against  any  evidence  of  fraud  ;  but  tliere  seems  to  be  no  objec- 
tion to  its  being  weighed  by  the  jury."  ^  And  it  was  afterward 
held,  that  such  admissions,  made  after  the  subsequent  attacher 
was  admitted  to  defend  the  previous  suit,  were  equally  admis- 
sible in  evidence  for  the  first  attacher.^ 

It  is  different,  however,  in  regard  to  giving  in  evidence  decla- 
rations of  the  first  attaching  creditor,  in  a  proceeding  taken  by  a 
subsequent  attacher  to  defeat  his  attachment.  There  they  are 
considered  entirely  inadmissible.^ 

§  279.  In  Massachusetts,  tlie  statute   authorizing  proceedings 

1  Strong  r.  Wlieeler,  o  I'ick.  410.  3  Carter  v.  Gregory,  8  Pick.  105. 

2  Lambert  v.  Craig,  12  Pick.  1^9. 

[245] 


§  -270         SIMULTANEOUS,    SUCCESSIVE,"  CONFLICTING,     [CHAP.  XI. 

of  this  (lescrii)ti(»n  fornicvly  provided  that  any  subsequent  attach- 
ing- creditor  of  the  same  jjroperty  which  was  attached  by  a  prior 
attacher,  niight  be  admitted  to  defend  the  first  suit,  in  like  man- 
ner as  the  party  sued  could  or  might  have  done  ;  and  it  was  held, 
that  in  order  to  entitle  a  subsequent  attacher  to  this  privilege,  it 
was  not  necessary  that  his  suit  should  have  been  instituted  in  the 
same  court  as  the  first.'  In  a  proceeding  taken  under  that  stat- 
ute, the  subsequent  attacher  offered  to  prove  that  a  portion  of 
the  note  on  which  the  first  suit  was  founded  was  not  due  to  the 
plaintiff;  but  it  was  objected  that  the  subsequent  attacher  could 
make  no  defence  which  the  defendant  could  not  himself  make  ; 
and  that  the  defendant  could  not  makel^uch  a  defence;  but  the 
court  considered  that  position  untenable.^ 


1  Lodge  V.  Lodge,  5  Mason,  407. 

2  Carter  v.  Gregory,  8  IMck.  165.  Tlie 
court  said  :  "  Tlie  object  of  the  statute, 
under  which  this  defence  was  made,  is 
avowedly  to  prevent  fraud  in  the  attach- 
ment of  real  or  personal  estate  ;  and  the 
provisions  of  the  statute  are  founded 
upon  a  supposed  collusion  between  par- 
ties to  the  suit,  to  defraud  creditors.  To 
limit  the  defence  which  the  subsequent 
attaching  creditor  is  authorized  to  make, 
to  such  facts  as  the  original  defendant 
might  himself  aver,  would  be  to  impair 
in  a  great  degree  the  use  of  the  statute, 
as  intended  by  tlie  legislature.  In  cases 
of  fraud  and  collusion,  the  defendant 
cannot  avoid  his  contract  by  setting  up 
fraud  in  defence  against  it.  It  is  only 
when  a  contract  is  avoided  by  the  stat- 
ute, as  in  the  case  of  usury  or  gaming, 
or  when  the  consideration  is  illegal,  that 
this  can  be  done.  Mere  want  of  consid- 
eration, arising  from  a  fraudulent  bar- 
gain between  the  promisor  and  promisee, 
not  in  violation  of  any  positive  law,  but 
for  the  purpose  of  defrauding  others, 
cannot,  we  think,  be  shown  in  evidence 
by  a  party  to  the  fraud,  in  defence  of  an 
action  ui)on  his  contract.  And  it  is  such 
contracts  that  the  legislature  intended 
should  be  inquired  into  by  third  persons, 
whose  rights  are  affected.  The  words 
'  in  like  manner,'  in  the  statute,  do  not 
limit  the  defence,  but  only  regulate  the 
nioile  of  making  it.  .  .  .  It  is  said,  then, 
that  the  plaintiff  is  entitled  to  judgment, 
because   lie  produces  a  note   which  the 

[-246] 


original  defendant  could  not  gainsay.  If 
this  be  true,  the  statute  is  of  no  use  ;  for 
its  object  is  to  admit  others  to  a  defence, 
whicli  grows  out  of  a  collusive  agreement 
between  the  plaintiff  and  the  original 
defendant.  Suppose  the  note  to  be  fab- 
ricated for  the  sole  purpose  of  abstract- 
ing the  property  of  the  promisor  from 
his  creditors,  shall  not  this  be  shown  ? 
And  yet  the  promi.sor  himself  could  not 
show  it.  Or  even  suppose  the  note  to  be 
given  for  a  valuable  consideration,  but 
that  the  sole  purpose  of  the  attachment 
was  to  defeat  other  creditors  and  to  hold 
the  property  to  the  use  of  the  debtor; 
shall  not  this  be  shown  1  And  yet  the 
promisor  could  not  show  it. 

"  But  it  is  said,  that  if  the  legislature 
so  intended,  their  act  is  without  author- 
ity, because  the  plaintiff,  as  between 
himself  and  the  debtor,  is  entitled  to  a 
juilgment.  The  same  may  be  said  in  all 
cases  of  default,  or  confessions  of  judg- 
ment;  and  the  argument  will  go  further, 
for  after  judgment  the  plaintiff  is  entitled 
to  execution  and  the  fruits  of  it ;  and 
yet,  even  at  common  law,  a  subsequently 
attaching  creditor  may  defeat  the  first 
attachment,  by  showing  that  the  judg- 
ment was  collusively  obtained. 

"  The  statute  has  only  provided  a 
mode  of  preventing  collusive  judgments, 
instead  of  leaving  the  injured  pnrty  to 
the  relief  before  existing  at  common  law  ; 
which  was  defective,  because  its  final 
success  depended  upon  the  ability  of  the 
wrong  doer  to  respond  in  damages.     The 


CHAP.  XI.]     AKD  FRAUDULENT  ATTACHMENTS. 


281 


§  280.  The  difficulties  attending  the  practical  operation  of  the 
Massachusetts  statute,  authorizing  a  subsequent  attacher  to  make 
any  defence  to  a  previous  attachment,  wliich  the  defendant  might 
make,  led  to  the  substitution  for  it  of  another  provision,  to  the 
effect  that  any  person  claiming  title  or  interest  in  the  attached 
propert}',  might  be  allowed  to  dispute  the  validity  and  effect  of 
the  prior  attachment,  on  the  ground  that  the  sum  demanded 
therein  was  not  justly  due,  or  that  it  was  not  payable,  when  the 
action  was  commenced.  Under  this  statute  this  case  arose.  A. 
made  out  and  signed  a  note  to  B.,  without  B.'s  knowledge,  and 
caused  an  attachment  to  be  made  thereon  ;  which  B.  assented  to, 
and  ratified  afterwards,  but  not  until  a  second  attachment  had 
been  made  by  C. ;  who  contested  the  validity  of  A.'s  attachment, 
on  the  ground  that  the  note  sued  on  was  not  a  debt  due  to  B.  at 
the  time  of  the  attachment.  The  court  sustained  this  position, 
because  —  among  other  reasons  —  the  note  did  not  constitute  an 
express  promise  until  assented  to  by  B.i  But  where  a  debt  was 
due  and  payable  when  an  attachment  was  taken  out,  and  the  at- 
tachment was  contested  by  a  subsequent  attacher,  on  the  ground 
that  it  was  obtained  by  the  order  and  direction  of  the  defendant, 
and  that  the  assent  of  the  creditor  was  not  given  until  after  the 
subsequent  attachment  had  been  levied  ;  the  court  held,  tliat  un- 
der the  statute  in  question  the  subsequent  attacher  had  no  right 
to  make  the  question,  because  the  facts  did  not  show  that  the 
debt  was  not  justly  due  and  owing,  or  that  it  was  not  payable, 
when  the  suit  was  brought.^ 

§  281.  Whether,  if  a  debtor  himself  cause  an  attachment  to 
issue,  and  to  be  executed  on  his  property  in  favor  of  his  creditor, 
without  the  knowledge  of  the  latter,  a  subsequent  attacher  can 
take  advantage  of  that  fact  to  dissolve  the  attachment,  does  not 
seem  to  have  been  directly  decided  ;  but  in  Massachusetts  a  case 
very  nearly  of  that  description  was  presented,  where  a  debtor,  at 
the  time  when  his  debt  was  incurred,  promistd  to  secure  his  cred- 

8tatute  arrests  tlie  evil  in  tlie  beginning,  '  Baird  v.  Williams,  19  Pick.  381.     In 

ami  rescues  the  i)r<)i)erty  itself  from  the  Swift  r.  Oocker,  21  Pick.  241,  the  at- 

unlawful  ajjpropriatioii  intended.    Surely  tachnient  was  sued  out  and  in  part  exe- 

tliis  was   a  just   and    proper   subject    of  cuted    before   the   note  was  signed,  and 

le}i;islation ;  and  the  parties  intereste<l  all  was     dissolved     by     a     subsequent     at- 

liave  a  hearing  in  court,  and  nuiy  main-  tacher. 

tain  their  several  rights."  ^  Uaird  v.  Williams,  19  Pick.  881. 

[247] 


§  282         SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,     [CHAP.  XI. 

itor  in  case  of  difficulty  ;  Init  the  manner  in  which  this  was  to  be 
done  was  not  agreed  upon  ;  and  the  debtor  afterward,  being  in 
failing  circumstances,  caused  his  own  property  to  be  attached  on 
behalf  of  the  creditor,  but  without  his  knowledge  ;  and  the  cred- 
itor, before  he  was  informed  of  the  attachment,  had  said,  that  if 
the  debtor  did  not  secure  him,  he  was  a  rascal.  The  court  held, 
that  the  agreement  to  secure  the  creditor  was  tantamount  to  the 
creation  of  an  agency  in  the  debtor,  Avhich  authorized  him  to 
cause  the  attachment ;  or,  if  not,  that  the  attachment  was  ratified 
by  the  creditor  ;  and  in  either  case  it  was  valid  against  subsequent 
attaching  creditors.^ 

§  282.  There  are  other  cases  in  which  attachments  will  be  held 
to  be  dissolved,  by  the  acts  of  the  plaintiff,  as  to  subsequent  at- 
taching creditors.  Each  attacher  has  a  right  to  the  surplus  of 
the  defendant's  property,  after  satisfying  the  previous  attach- 
ments ;  and  any  act  of  an  attaching  creditor,  after  the  institution 
of  his  suit,  altering  his  writ,  or  changing  or  increasing  the  de- 
mand upon  which  he  attached,  is,  in  effect,  a  fraud  upon  the 
subsequent  attachers,  and  is  regarded  as  dissolving  his  attach- 
ment so  far  as  they  are  concerned. 

In  the  case  of  an  alteration  of  the  writ,  it  has  been  held,  that 
an  attachment  is  dissolved,  as  between  creditors,  by  amending  the 
writ,  under  leave  of  court,  by  striking  out  the  name  of  one  of 
two  defendants,  so  that  the  action  stands  as  against  the  other 
defendant  only .2  So,  too,  by  changing  the  place  to  which  the 
writ  is  made  returnable.^ 

In  the  case  of  changing  or  increasing  the  demand  upon  Avhich 
the  attachment  was  obtained,  it  lias  been  decided,  that  the  filing 
of  a  new  count  to  the  declaration,  which  does  not  appear  by  the 
record  to  be  for  the  same  cause  of  action  as  that  originally  sued 
on,  will  dissolve  the  attachment.  A  case  of  this  description  first 
came  up  in  Massachusetts,  upon  the  following  facts.  The  first 
attacher's  writ  cont^ned  two  counts,  the  first,  upon  a  promissory 
note  for  8171.82,  the  second  for  $2,000,  money  had  and  received. 
While  the  action  was  pending,  the  plaintiff  added  three  counts; 
the  first  for  |322,  the  balance  of  an  account  annexed,  in  which 
the  charges  were  principally  for  labor,  articles  sold  and  delivered, 

1  Bayley  v.  Bryant,  24  Pick.  198.  '  Burrows  v.  Stoddard,  3  Conn.  431 ; 

2  Peck  V.  Sill,  3  Conn.  157.  Starr  v.  Lyon,  5  Ibid.  538. 

[248] 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  282 

and  money  paid  ;  the  second,  on  a  promissory  note  for  $96  ;  and 
the  third,  on  a  promissory  note  for  1500.  Upon  this  state  of 
facts  a  controversy  arose  between  this  plaintiff  and  a  subsequent 
attacher,  each  claiming  the  proceeds  of  the  property  attached. 
The  court  declared  the  first  attachment  dissolved,  and  used  the 
following  language :  "  We  think  that  after  an  attachment,  or 
holding  to  bail,  the  plaintiff  cannot  alter  his  writ  to  the  injury  of 
a  subsequent  attaching  creditor,  or  of  bail.  The  subsequently 
attaching  creditor  has  a  vested  right  to  the  excess  beyond  the 
amount  of  the  judgment  to  be  rendered  upon  the  writ  of  the 
first  attaching  creditor,  as  it  was  when  served.  So,  bail  are 
not  to  be  made  liable  for  a  greater  sum  than  was  included  in 
the  writ  at  the  time  when  they  entered  into  the  bail-bond.  It  is 
said  that  the  second  count  would  cover  the  additional  counts ; 
but  it  cannot  be  ascertained  from  the  record  that  it  was  intended 
to  cover  them."  ^  The  same  court  held  the  same  views,  in  a 
subsequent  case,  where  the  declaration  contained  a  count  for 
money  had  and  received,  and  a  count  for  goods  sold  and  deliv- 
ered; and  the  plaintiff,  in  the  progress  of  the  suit,  under  a  leave 
to  amend,  filed  nine  new  counts,  on  notes,  checks,  and  for  money 
lent,  &c.  The  court  there  say :  "  The  claim  or  cause  of  action, 
for  the  security  of  which  a  creditor  obtains  his  lien  by  attach- 
ment, should  be  clearly  indicated  in  the  writ  and  declaration. 
The  declaration  should  set  forth  clearly  the  cause  or  causes  of 
action  to  be  secured  by  the  attachment.  And  it  would  be  a 
manifest  injustice  to  a  subsequently  attaching  creditor,  to  permit 
the  prior  attacher  to  amend,  by  the  introduction  of  claims  which 
were  not  originally  set  forth  and  relied  upon  in  the  declaration  ; 
for  he  has  a  vested  interest  in  the  surplus.  The  rights  of  the  at- 
taching creditors  should  be  ascertained  as  they  existed  and  were 
disclosed  by  the  writ  and  declaration,  at  the  time  when  they 
made  their  attachments.  If  it  were  otherwise,  the  attachment 
law  might  be  made  a  most  powerful  engine  of  fraud,  that  would 
work  up  the  Avhole  of  the  debtor's  property  for  the  use  of  the 
first  attacher  who  should  think  proper  to  enlarge  his  claims  suf- 
ficiently to  embrace  it."  ^  So,  where  a  defendant  in  an  attach- 
ment suffered  default,  and  the  plaintiff  took  judgment  for  the 

1  Willis    V.    Crooker,    1    Pick.    204;     Young    v.    Broadbent,    23    Iowa,    589; 
Freeman  v.  Creech,  112  Mass.  180.     See     Wood  v.  Denny,  7  Gray,  540. 

••J  Fairfield  v.  Baldwin,  12  Pick.  888. 
[249] 


§  282  a     SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI.1 

who]e  claim  in  suit,  Avitliout  declucting  therefrom  the  amount  of 
certain  articles  received  b)^  him  from  tlie  defendant  in  part  pay- 
ment of  the  claim  ;  it  was  held,  that  his  attachment  was  thereby 
vacated  as  to  subsequent  attaching  creditors.^  So,  where,  by 
agreement  betAveen  the  plaintiff  and  the  defendant,  judgment  was 
taken  for  claims  which  were  not  recoverable  under  any  count  in 
the  declaration  ;  it  was  held  to  be  a  fraud  which  dissolved  the 
attachment  as  against  a  subsequent  attacher.^ 

§  282  a.  The  doctrines  stated  in  the  next  preceding  section 
were  applied  in  Colorado,  in  a  case  where,  pending  the  at- 
tachment, the  defendant  sold  real  estate  upon  which  the  attach- 
ment had  been  levied,  and  after  the  sale,  the  plaintiff,  with 
knowledge  thereof,  amended  his  proceedings,  and  took  judgment 
by  confession  for  more  than  double  the  amount  for  which  the  at- 
tachment was  levied  on  the  real  estate,  and  under  execution  on 
that  judgment  the  real  estate  was  sold.  The  purchasers  of  the 
real  estate  from  the  defendant  filed  a  bill  in  chancery  to  set  aside 
the  sale,  and  release  and  discharge  the  lien  of  the  judgment ;  and 
the  bill  was  sustained,  upon  the  ground  that  the  lien  of  the  at- 
tachment was  lost,  as  against  subsequent  purchasers  from  the  de- 
fendant, by  the  increase  of  the  plaintiff's  demand,  with  notice  of 
the  previous  sale  by  the  defendants.^  But,  on  appeal,  this  de- 
cision was  reversed,  and  the  bill  dismissed,  by  the  Supreme  Court 
of  the  United  States,  on  the  ground  that  the  complainants  in  the 
bill  were  not  creditors,  but  purchasers  pendente  lite,  and  therefore 

'  Pierce  v.  Partridge,  3  Metcalf,  44.  this   whole   amount   of  his   dehtor,   this 

2  Page  V.  Jewett,  46  New  Hanip.  441.  woukl  be  doing  a  wrong  to  the  rights  of 

In  this  case  the  court,  after  a  review  of  subsequent     attaching     creditors    wiiich 

tlie  autliorities  in  that  and  otlier  States,  vitiates  his  attaclnnent.  as  against  such 

thus  sums  up  the  doctrine  on  this  sub-  creditors,  unless  it  be  shown  affirmatively 

ject :  "  So,  if  a  prior  attaching  creditor  that   the   error  was  the   result   of   mere 

takes  his  judgment  for  a  larger  amount  mistake  or  accident;  in  which  last  case 

than  he  could  properly  have  done  under  the   whole  judgment   will   not    be    held 

his  declaration,  either  in  consequence  of  void   as   to   subsequent   attaching    cred- 

adding   amendments   for   new  causes  of  itors  ;  but  in  the  absence  of  such  affirma- 

action,  or  without  such  amendments,  or  tive   proof   of  mistake,   &c.,   the   wrong 

if  he  take  judgment  for  a  claim  larger  done  to  subsequent  attaching  creditors, 

than  was  due  at  the  time  tlie  writ  was  or  attempted  or  intended  to  be  done,  tiie 

made  and  served,  or  on  any  other  claim  law  pronounces  a  fraud  upon  tliem,  and 

than  that  which  was  intended  to  be  in-  visits    the   fraud  with   its   ordinary  pen- 

eluded  in  tlie   suit   at    the    time   of   the  alty  ;  it  makes  the  judgment  into  which 

attachment,  even  though  the  ad  damninn  the  fraud  enters  void  as  to  those  injured 

in  the  writ,  and  the  counts  in  the  original  or  intended  to  be  injured  by  the  fraud, 

declaration  were  large  enough  to  have  and  the  attachments  are  so  far  vitiateil." 
covered  them,  and  should  seek  to  collect  ^  Tilton  v.  Cofield,  2  Colorado,  392. 

[250] 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  285 

as  conclusively  bound  by  the  results  of  the  litigation,  whatever 
they  might  be,  as  if  they  had  been  parties  to  it  from  the  outset.^ 

§  283.  In  Maine,  where  the  parties,  during  the  pendency  of  a 
suit  by  attachment,  made  a  settlement  of  all  their  accounts,  by 
which  a  balance  was  found  due  to  the  plaintiff,  for  wlilch  judg- 
ment was  entered  in  his  favor  by  consent ;  and  the  settlement  in- 
cluded some  demands  for  which  the  writ  contained  no  proper 
counts,  and  some  which  were  not  payable  till  after  the  action  was 
commenced  ;  it  was  held,  that  the  attachment  was  dissolved  in 
toto,  as  to  subsequent  attaching  creditors.^ 

§  284.  A  very  strong  case  was  where,  by  a  slip  of  the  pen,  in 
making  out  the  writ,  the  command  to  the  officer  was  to  attach  to 
the  value  of  six  dollars  only,  while  the  cause  of  action  set  forth, 
and  the  judgment  afterwards  recovered,  were  for  more  than  four 
hundred  dollars.  With  the  consent  of  the  defendant,  the  writ  was 
amended  by  inserting  the  word  Jmndred  aher  the  word  six;  and  yet 
it  was  decided,  that  a  subsequent  attacher  was  not  affected  by  the 
amendment,  and  that  he  might  maintain  an  action  against  the  of- 
ficer for  api)lying  the  attached  property  in  full  satisfaction  of  the 
previous  attachment;  there  not  being  sufficient  to  satisfy  both.^ 

§  285.  But  where  an  attorney,  inadvertently,  and  without  the 
knowledge  of  his  client,  took  a  judgment  and  obtained  execution 
for  a  sum  known  by  his  client  to  be  more  than  was  really  due 
him,  and  on  discovering  his  mistake,  went  to  the  officer  holding 
the  execution,  and  stated  the  sum  that  was  actually  due  the 
plaintiff,  and  that  he  had  come  to  give  instructions  relative  to  the 

•  Cofield  V.  Tilton,  9.3  United  States,  abide  tlie  result.  Havin<j  obtruded  tliem- 
163.  The  court  said  :  "  The  appellees  selves  upon  tiie  property  attached,  they 
[complainants]  voluntarily  took  tlie  posi-  insist  that  their  purchase  narrowed  the 
tion  they  occupy.  They  chose  to  buy  a  rights  of  the  plaintiff  s,  and  circumscribed 
large  amount  of  property,  including  that  the  jurisdiction  of  the  court.  Such  is  not 
in  controversy,  from  the  fugitive  debtor,  the  law.  After  their  purchase,  the  court, 
Tiiis  was  done  after  tlie  latter  had  been  tlie  parties,  and  the  res,  stood  in  all  re- 
seized  under  the  writ  of  attachment,  and  spects  as  tliey  stood  before ;  and  the  judg- 
while  the  suit  in  which  it  was  issued  was  ment,  sale,  and  conveyance  have  exactly 
still  pending.  They  took  the  title  sub-  the  same  effect  as  if  the  appellees  and  the 
ject  to  the  contingencies  of  the  amend-  facts  upon  which  they  rely  had  no  e.xist- 
ments  that  were  made,  and  of  every  thing  ence" 

else,  not  coram  non  jiidire,  the  court  might  ^  Clark   v.   Foxcroft,    7   Maine,    348  ; 
see  fit  to  do  in  the  case.    The  attachment  Fairbanks  i-.  Stanley,  18  Ibid.  li'.iB. 
might   be   disciiarged,    or    the  judgment  ^  Putnam   v.  Hall,  3   Pick.  445  ;  Dan- 
might  be   larger   than  was    then  antici-  ielson  v.  Andrews,  1  Ibid.  156. 
pated.    They  took  the  chances,  and  must 

[251] 


§  287         SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 

service  of  the  execution  ;  it  was  held,  that,  as  there  was  no  fraud- 
ulent intent,  but  a  mere  mistake,  the  attachment  was  not  thereby- 
dissolved. ^  And  so,  a  mere  amendment  of  the  declaration,  by 
which  the  amount  to  be  recovered  is  not  increased,  and  no  new 
cause  of  action  is  introduced,  will  not  vacate  an  attachment.  If, 
for  example,  there  are  money  counts  only  in  the  declaration, 
which  refer  to  a  bill  of  particulars  annexed,  containing  a  descrip- 
tion of  bills  of  exchange,  notes,  &c.,  which  are  to  be  offered  in 
evidence  ;  counts  subsequently  added,  technically  describing  those 
bills,  notes,  &c.,  would  not  be  considered  as  new  causes  of  action, 
but  as  entirely  consistent  with  the  intent  of  the  plaintiff,  as  origi- 
nally manifested  in  his  writ  and  declaration.  If,  however,  such  an 
intent  cannot  be  inferred  from  the  writ  and  declaration,  the  new 
counts  will  be  considered  to  be  for  other,  and  not  for  the  original, 
causes  set  forth.^ 

§  286.  But  where  a  declaration  contains  the  money  counts,  how 
is  it  to  be  determined  what  demands  were  put  in  suit,  and  what 
were  afterwards  introduced?  The  rule  seems  to  be,  that  those 
which  the  plaintiff  owned  when  the  suit  was  brought,  and  which 
were  due  and  payable,  and  liable  to  be  introduced  without 
amendments,  and  which  were  so  introduced,  and  judgment  ob- 
tained upon  them,  cannot,  in  the  absence  of  contradictory  proof, 
be  regarded  as  not  in  suit :  for  instance,  none  of  the  cases  decide 
that  an  attachment  would  be  dissolved,  by  proving  a  promissory 
note  under  a  money  count  originally  contained  in  the  declaration.^ 

§  287.  As  before  stated,^  a  mere  amendment  of  a  declaration, 
by  which  the  amount  to  be  recovered  is  not  increased,  and  no  new 
cause  of  action  is  introduced,  will  not  dissolve  an  attachment. 
Nor  will  an  amendment  of  the  given  name  of  one  of  two  defend- 
ants.^ But  the  introduction  of  new  defendants  into  the  writ 
after  the  levy  of  it  will  have  that  effect.  Thus,  where  partner- 
ship property  was  attached,  upon  a  writ  containing  the  names  of 
three  only  out  of  four  partners,  and  the  next  day  the  name  of  the 

1  Felton  V.  Warls worth,  7  Cusliing,  Miller  w.  Clark,  8  Ibid.  412;  Ball  l-.  Claflin, 
687.  See,  in  the  opinion  of  the  court,  the  6  Ibid.  303;  Laigliton  v.  Lord,  9  Foster, 
remarks  upon  the  cases  of  Fairfield  v.  237;  McCarn  v.  Rivers,  7  Iowa,  404; 
Baldwin,  and  Pierce  v.  Partridge.  See,  Austin  v.  Burlington,  34  Vermont,  506. 
also,  Laigliton  v.  Lord,  9  Foster,  237  ;  *  Fairbanks  v.  Stanley,  18  Maine,  296. 
Page  V.  Jewett,  4G  New  Hamp.  441.  *  Ante,  §  285. 

2  Fairfield  v.  Baldwin,  12  Pick.  388  ;  5  West  v.  Piatt,  116  Mass.  308. 

[252] 


CHAP.  XI.]  AND    FEAUDULENT   ATTACHMENTS.  §  289 

fourth  was  inserted,  and  a  new  attachment  made  upon  the  same 
property  ;  but  in  the  mean  time  another  creditor  had  attached 
the  property,  upon  a  writ  against  the  four  partners  ;  it  was  de- 
cided, that  the  first  attachment  was  vacated  as  against  the 
second  attaching  creditor.^  Much  more  will  an  attachment  be 
dissolved  by  the  substitution  of  another  defendant  for  the  one 
against  whom  it  issued.^ 

§  288.  Another  act  of  a  plaintiff  by  which,  as  to  subsequent  at- 
tachers,  it  is  said  his  attachment  will  be  dissolved,  is  the  referring 
of  the  action,  and  all  demands  between  the  plaintiff  and  defendant, 
to  arbitration;  unless  it  be  shown  that  the  reference  covered  only 
the  demands  sued  upon.  The  Supreme  Court  of  Maine  carried 
the  doctrine  a  step  further,  and  held,  that  it  makes  no  difference 
whether  any  new  demand  beyond  the  original  cause  of  action  is 
introduced,  or  if  introduced,  whether  it  is  allowed,  or  not.  The 
mere  act  of  referring,  where  the  rule  of  reference  is  carried  into 
effect,  is  considered  to  dissolve  the  attachment ;  on  the  principle, 
that,  for  the  sake  of  a  general  settlement  with  his  adversary,  or 
for  any  other  reason  satisfactory  to  himself,  the  plaintiff  consents 
to  waive  and  does  waive  the  security  he  holds  under  his  attach- 
ment. And  the  court  say,  "  Unless  such  a  principle  should  be 
adhered  to,  a  plaintiff's  demand  might  be  essentially  increased, 
by  the  introduction  of  new  causes  of  action,  and  in  this  manner 
a  second  attaching  creditor  might  lose  the  benefit  of  his  attach- 
ment, and  though  with  no  immoral  motive  on  the  part  of  the 
plaintiff,  such  second  creditor  would  be,  in  legal  contemplation, 
defrauded  of  his  rights."  ^ 

The  better  rule,  however,  seems  to  be  that  adopted  in  Massa- 
chusetts, where,  though  it  was  at  first  held,  that  the  mere  fact  of 
entering  into  such  a  reference  dissolves  the  attachment,*  in  a  sub- 
sequent case  that  decision  was  limited,  and  it  was  determined  that, 
if  it  be  shown  that  no  new  demand  was  admitted  by  the  referees, 
the  attachment  will  not  be  dissolved.^ 

§  289.  Fraudulent  attachments  will  also  be  overturned,  when 
brought  in  conflict  with  the  rights  of  third  persons,  other  than  at- 

1  Denny  v.  Ward,  3  Pick.  l'J9.  ^  ciark   v.   Foxcroft,    7    Maine,   348. 

'^  Milleilgeville  Man.  Co.  v.  Kives,  44  See  Mooney  v.  Kavanaugli,  4  Maine,  277. 
Georgia, 479.  *  Hill  v.  Hunnewell,  1  I'iek.  192. 

6  Seeley  v.  Brown,  14  Pick.  177. 
[253] 


§  289        SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,     [CHAP.  XI. 

ladling  creditors.  Thus,  whore  A.,  being  desirous  of  purchasing 
certain  mortgaged  land,  paid  the  mortgagee  the  value  of  his  inter- 
est therein,  and  the  mortgagee  reconveyed  to  the  mortgagor,  to 
enable  him  to  give  a  deed  of  the  whole  estate  to  A.,  but  immedi- 
ately afterwards,  and  before  the  deed  to  A.  was  executed,  at- 
tached the  land  in  a  suit  against  the  mortgagor,  the  attachment 
was  declared  fraudulent  and  void  as  against  A.^ 

A  case  involving  similar  princi2)les  came  up  in  Vermont,  under 
a  petition  to  foreclose  a  mortgage.  A.  and  B.  were  creditors  of 
C,  who  had  engaged  to  give  A.  security  for  his  debt  by  a  mort- 
gage on  lands.  On  a  certain  day,  finding  himself  in  failing  cir- 
cumstances, C.  applied  to  B.  and  stated  to  liim  his  pledge  to  A., 
and  requested  B.  to  prepare  a  note  and  a  mortgage  to  A.  to 
secure  the  payment  of  the  note  ;  at  the  same  time  disclosing  to  B. 
his  situation,  and  pointing  out  to  him  property  to  a  large  amount, 
which  he  requested  B.  to  attach  for  his  own  security.  To  this 
arrangement  B.  made  no  objection,  and  C.  executed  the  note  and 
mortgage  and  took  them  away,  and  the  mortgage  was  lodged  for 
record  early  the  next  morning.  In  the  mean  time,  B.  sued  out 
attachments  against  C,  and  attached  the  premises  embraced  in 
the  mortgage,  together  with  the  other  property  designated  by  C. 
The  controversy  was  between  A.,  claiming  the  property  under 
the  mortgage,  and  B.,  claiming  it  under  the  attachment.  It  was 
held,  that  the  attempt  by  B.  to  defeat  the  arrangement  he  had 
previously  acquiesced  in,  was  inconsistent  with  good  faith,  and 
surreptitious,  and  that  the  mortgage  should  be  preferred  to  the 
attachment.^ 

In  New  Hampshire,  a  similar  case  arose,  on  this  state  of  facts. 
A.  had  mortgaged  certain  real  estate,  a2)parently  for  its  full 
value.  B.  and  C.  being  both  creditors  of  A.,  B.  informs  C.  that 
he  proposes  to  procure  an  arrangement  by  which  that  mortgage 
shall  be  removed  and  one  taken  to  himself,  and  C.  advises  him 
to  effect  the  arrangement,  which  is  at  once  proceeded  with.  Be- 
fore the  necessary  writings  are  prepared,  and  while  they  are  in 
progress,  C.  causes  an  attachment  to  be  made  of  the  land ;  which 
does  not  become  known  to  B.  and  the  other  parties,  until  their 
agreement  was  completed  and  the  deeds  recorded.  B.  then  filed 
his  bill  in  equity,  setting  forth  the  facts,  and  praying  that  C. 
might  be  enjuined  against  claiming  any  thing  in  the  land  contrary 

1  Spear  v.  Hubbard,  i  Pick.  143.  2  Temple  v.  Hooker,  6  Vermont,  240. 

[254] 


CHAP.  XI.]     AND  FRAUDULENT  ATTACHMENTS.         §  289 

to  the  title  of  the  j^laintiff  under  the  mortgage,  and  that  the  at- 
tachment might  be  postponed  to  the  mortgage.  The  court,  con- 
sidering the  attachment  under  such  circumstances  to  operate  as 
a  direct  fraud  upon  B.,  granted  the  decree  according  to  the  prayer 
of  the  bin.i 

So,  where  a  conveyance  had  been  made  of  certain  lands,  on 
the  7th  of  jNIay,  and  before  it  could  be  properly  recorded,  one 
attached  the  lands  to  secure  a  note  signed  by  the  grantors  on  the 
8th  of  May,  and  payable  in  thirty  days,  but  which  was  ante- 
dated, as  the  3d  of  April  preceding,  being  the  time  when  the 
goods  which  formed  the  consideration  of  it  had  been  sold  on  a 
credit  of  six  months  ;  it  was  held,  that  the  antedating  the  note, 
and  creating  a  present  debt,  on  which  the  attachment  of  the 
lands  was  made,  was  a  fraud  on  the  grantees,  and  did  not  disturb 
their  rights  under  the  conveyance,  whatever  might  be  the  validity 
of  the  proceedings  as  between  the  parties.^ 

1  Buswell  V.  Davis,   10  New  Ilamp.  ^  Briggs  v.  French,  2  Sumner,  251. 

413. 

[255] 


§  291  CUSTODY  OF   ATTACHED   PROPERTY.        [CHAP.  XII. 


CHAPTER  XII. 

CUSTODY  OF  ATTACHED  PROPERTY. 

§  290.  When  an  officer  levies  an  attachment  on  personal  prop- 
erty, he  becomes  liable  therefor  at  the  termination  of  tlie  suit; 
on  the  one  hand,  for  its  production  to  satisfy  the  plaintiff's  exe- 
cution, if  obtained  ;  on  the  other,  for  its  return  to  the  defendant, 
if  the  suit  fails,  or  the  attachment  be  otherwise  dissolved.  Hence, 
the  first  duty  of  the  officer  is  to  retain  possession  of  the  prop- 
erty. If  he  do  not,  he  will  be  regarded  as  having  abandoned  the 
attachment ;  and  its  lien,  as  to  subsequent  attachers,  or  bond  fide 
purchasers  from  the  defendant,  will  be  lost.^  But  if  the  plaintiff 
consent  that  the  property  pass  out  of  the  officer's  possession,  the 
defendant  cannot  take  advantage  of  that  fact  to  dissolve  the 
attachment.  Thus,  where  a  steamboat  was  attached,  but,  by 
agreement  between  the  plaintiff  and  the  master  of  the  boat,  was 
allowed  to  proceed  on  its  voyage,  with  the  understanding  that  on 
its  return  it  should  be  delivered  to  the  sheriff,  subject  to  the  writ ; 
it  was  held  that,  as  between  the  parties  to  the  action,  the  lien  of 
the  attachment  was  not  extinguished.^ 

§  291.  In  view  of  this  liability,  it  is  necessary  that  the  officer 
should  sustain  such  a  relation  to  personal  property  which  he  has 
seized,  as  will  enable  him  to  hold  it.  To  this  end,»he  is,  by  the 
levy  of  the  attachment,  and  the  reduction  of  the  property  into 
his  possession,  vested  with  a  special  property  in  the  latter,  which 
enables  him  to  protect  the  rights  he  has  acquired  ;  ^  and  this 

1  Nichols   V.  Patten,  18   Maine,   231;  Sanford   v.   Boring,   12  California,   539; 

Waterhouse  r.  Smith,  22  Ibid.  337;  Bald-  Chadbourne  v.  Sumner,  1(3  New  Hamp. 

win  V.  Jackson,  12  Mass.   131  ;  Boynton  12!). 

V.  Warren,  99  Ibid.  172;  Sanderson  v.  ^  Conn  r.  Caldwell,  6  Illinois  (1  Gil- 
Edwards,  16  Pick.  144 ;  Bruce  <;.  Holdcn,  man),  631.  See  Fifield  v.  Wooster,  21 
21    Ibid.    187 ;    Taintor    v.    WiUiams,    7  Vermont,  215. 

Conn.  271  ;  Pomroy  ('.  Kingsley,  1  Tyler,  3  Post,    §371;    Barker     w.  Miller,  6 

294 ;  Fitch  v.  Rogers,  7   Vermont,  403 ;  Johnson,  195  ;  Hotchkiss  v.  McVickar,  12 
[256] 


CHAP.  Xn.]        CUSTODY   OF   ATTACHED   PROPERTY. 


291 


property  constitutes  an  insurable  interest,  which  he  may  protect 
by  obtaining  insurance  thereon,;  though  he  is  not  under  obliga- 
tion to  do  so.^ 

This  special  property  of  the  officer  continues  so  long  as  he 
remains  liable  for  the  attached  effects,  either  to  have  them  forth- 
coming to  satisfy  the  plaintiff's  demand,  or  to  return  them  to  the 
owner,  upon  the  attachment  being  dissolved ;  but  no  longer. ^ 
For  any  violation  of  his  possession,  while  his  liability  for  the 
property  continues,  he  may  maintain  trover,^  trespass,*  or  re- 
plevin ;  5  and  in  any  such  action  the  defendant  cannot  set  up  as 
a  defence  any  informality  or  irregularity  in  the  attachment  suit.^ 
And  the  officer  alone  can  maintain  any  such  action  ;  it  cannot  be 
maintained  by  the  attachment  plaintiff.'  If  the  officer  die  before 
action  brought  in  his  favor  against  a  trespasser,  his  administrator 
may  maintain  trover,  for  the  benefit  of  the  attaching  creditor.^ 
And  if  the  conversion  take  place  while  the  officer  who  attached 
the  property  remained  in  office,  his  subsequent  resignation  of  his 
office  will  not  deprive  him  of  his  right  of  action. ^     In  order  to 


Ibid.  40.3 ;  Wilbraham  v.  Snow,  2  Saun- 
ders, 47 ;  Ladd  v.  North,  2  Mass.  514 ; 
Gibbs  V.  Cliase,  10  Ibid.  125 ;  Whittier  v. 
Smith,  11  Ibid.  211;  Poole  v.  Symonds, 
1  New  Hamp.  289 ;  Huntington  v.  Blais- 
deli,  2  Ibid.  317;  Odiorne  v.  Colley,  Ibid. 
66 ;  Latlirop  v.  Bialce,  3  Foster,  46 ; 
Nichols  V.  Valentine,  36  Maine,  322 ; 
Stiles  V.  Davis,  1  Black,  101  ;  Foulks  v. 
Pegg,  6  Nevada,  136.  A  condensed  sum- 
mary of  the  rules  concerning  the  relation 
of  an  officer  to  personal  property  he  has 
attached,  is  thus  given  by  Isham,  J.,  in 
Braley  v.  French,  28  Vermont,  546  :  "  In 
the  attachment  of  personal  estate,  the 
officer  acquires  a  special  property,  and 
the  right  to  its  custody  and  possession. 
For  any  injury  to  it,  the  right  of  action  is 
in  the  officer,  as,  in  anj'  termination  of 
the  case,  he  is  accountable  for  the  prop- 
erty either  to  the  creditor  or  debtor. 
Tiiat  special  property  the  officer  may 
release,  so  as  to  destroy  any  lien  upon  the 
property  created  by  the  attaciiment.  He 
niay  permit  the  possession  of  the  prop- 
erty to  remain  with  the  debtor,  in  which 
case  it  can  be  held  by  a  subsequent  at- 
tachment, or  a  subsequent  purchaser,  free 
from  any  lien  or  claim  of  the  officer  upon 
it.    His  right  over  the  property  is  inde- 


17 


pendent  of  the  creditor  or  debtor,  as,  in  a 
given  event,  he  is  responsible  for  it  to 
the  debtor,  and  in  another  event  to  the 
creditor  ;  and  that  riglit  exists  so  long  as 
that  special  property  continues  in  him." 

1  White  V.  Madison,  26  Howard  Pract. 
481. 

■^  Collins  V.  Smith,  16  Vermont,  9 ; 
Gates  V.  Gates,  15  Mass.  310;  Holt  v. 
Burbank,  47  New  Hamp.  164. 

3  Ludden  v.  Leavitt,  9  Mass.  104  ; 
Badlam  v.  Tucker,  1  Pick.  .389  ;  Lowry 
V.  Walker,  5  Vermont,  181 ;  Lathrop  v. 
Blake,  3  Foster,  46. 

*  Brownell  v.  Manchester,  1  Pick.  232 ; 
Badlam  v.  Tucker,  Ibid.  389;  Walker  i-. 
Foxcroft,  2  Maine,  270  ;  Strout  v.  Brad- 
bury, 5  Ibid.  313;  Whitney  i\  Ladd,  10 
Vermont,  165. 

5  Perley  v.  Foster,  9  Mass.  112;  Gor- 
don V.  Jenney,  16  Ibid.  465. 

«  Marshall  v.  Marshall,  2  Houston, 
125. 

~'  Skinner  V.  Stuart,  39  Barbour,  206; 
Schaeffer  v.  Marienthal,  17  Ohio  State, 
183. 

8  Hall  V.  Walbridgc,  2  Aikcns,  215. 

3  Polley  V.  Lenox  Iron  Works,  4  Allen, 
329. 

[257] 


§  292  CUSTODY    OF   ATTACHED   PROPERTY.        [CHAP.  XII. 

maintain  his  special  property,  and  to  entitle  himself  to  the  con- 
tinued protection  of  the  law,  the  officer  must,  in  his  proceedings 
with  the  propert}'^  subsequent  to  the  attachment,  comply  with  all 
the  requirements  of  the  law,  or  show  some  legal  excuse  for  not 
doing  so ;  and  if  he  does  not,  he  becomes  liable,  not  only  to 
those  on  whose  behalf  he  acts,  l)ut  also  to  the  owner  of  the  prop- 
erty, and  those  claiming  under  him  and  standing  in  his  situation.^ 
Thus,  if  he  sell  the  property  without  lawful  authority,  he  is 
counted  a  trespasser  ah  initio  ;  and  the  pendency  of  the  action  in 
which  the  attachment  was  made  is  no  obstacle  to  an  immediate 
suit  by  the  owner.^ 

§  292.  To  what  degree  of  care  and  diligence  in  the  keeping  of 
attached  property  is  an  officer  to  be  held  ?  This  question  re- 
ceived a  careful  and  elaborate  consideration  by  the  Supreme 
Court  of  Vermont ;  which  is  referred  to  here,  rather  than  in 
another  place,  because  it  was  raised  in  connection  with  the  offi- 
cer's liability  to  the  plaintiff  in  attachment,  for  not  having  prop- 
erty forthcoming  on  execution.  Certain  cattle  were  attached, 
and  the  officer  being  sued  for  failing  to  have  them  forthcoming, 
to  be  sold  on  execution,  offered  testimony  to  show  that  when 
they  were  attached,  he  delivered  them,  for  safe  keeping,  to  one 
A. ;  that  the  plaintiff's  agent,  who  ordered  the  attachment  made, 
was  present  and  made  no  objection  ;  that  A.  put  the  cattle  into 
a  pasture,  with  a  good  and  sufficient  fence  ;  and,  in  a  few  days 
after,  the  defendant,  the  owner  of  the  cattle,  without  the  knowl- 
edge or  consent  of  the  officer,  or  of  A.,  took  down  the  fence  of 
the  pasture,  drove  the  cattle  out,  and  put  them  in  his  own  pas- 
ture, and  gave  such  notice  that  other  creditors  attached  and  held 
the  cattle.  This  testimony  was  rejected  by  the  court,  and  the 
matter  came  up  on  the  propriety  of  the  rejection.  The  Supreme 
Court,  after  examining  a  number  of  cases  cited  in  support  of  the 
plaintiff's  action,^  proceed  as  follows: 

''  Thus  stand  the  decided  cases  which  have  been  presented  to 
the  court.  And  it  is  needless  to  say  they  do  not  afford  much  aid 
in  determining  the  question  before  us.     We  are  left  to  decide  it, 

1  Jordan  v.  Gallup,  16  Conn.  536.  Bridge,   11    Mass.   242;  Tyler  v.  Ulmer, 

2  Ross   f.  Philbrick,  39  Maine,  29.  12   Ibid.    163;    Congdon   v.    Cooper,   15 
•*  Those  cases  were,  Jenner  I'.  Joliffe,     Ibid.    10;    and   Runlett  v.   Bell,   6   New 

6  Jolins.  9,  and  9  Johns.  381 ;  Cilley  v.     Hamp.  433. 
Jenness,  2  New   Hamp.   87 ;    Phillips  v. 
[258] 


CHAP.  XII.]        CUSTODY   OF   ATTACHED   PROPEKTY.  §  292 

much  as  we  judge  the  general  principles  of  the  law  of  bailment 
and  the  kindred  analogies  require. 

"  So  far  as  the  general  principles  of  the  law  of  bailment  are 
concerned,  there  is  not,  at  the  present  day,  perhaps,  any  very 
striking  reason  to  be  urged  why  sheriffs  should  be  laid  under 
any  higher  degree  of  obligation  in  regard  to  keeping  property, 
than  other  bailees  for  pay,  i.e.  ordinary  care  and  diligence.  But 
early  in  the  history  of  the  common  law  it  was  decided  that,  in 
regard  to  property  taken  on  final  process  (and  in  England  it  is 
taken  on  no  other  ordinary  process),  the  officer  making  the  levy 
should  be  liable  for  its  safe  keeping  and  forthcoming,  in  all  cases, 
unless  hindered  by  public  force,  or  inevitable  accident,  and  that 
he  could  not  excuse  himself  by  showing  a  rescue  even.^  The 
same  rule  of  liability  obtains  in  regard  to  the  body,  when  once  in 
custody  upon  execution.^  But  when  the  body  is  arrested  on 
mesne  process,  the  sheriff  may  return  a  rescue.^  The  reason  as- 
signed in  the  books  is,  that,  in  the  case  of  arrest  and  custody  on 
final  process,  the  officer  has  usually  more  time  for  preparation,  and 
may,  if  he  will,  have  the  aid  of  the  posse  of'  the  county  ;  but  in 
the  case  of  mesne  process,  he  must  arrest  when  the  debtor  is 
pointed  out  to  him,  and  may  be  often  required  to  do  it  suddenl}'^, 
and  cannot  always  be  supposed  to  have  the  posse  at  his  command, 
at  a  moment's  warning.  To  my  mind,  the  attempt  at  making  a 
distinction  in  the  cases,  shows  more  reason  for  dispensing  alto- 
gether with  any  such  rigorous  requirement,  in  either  case,  than 
it  does  for  so  wide  a  distinction  between  the  two  cases  ;  but  such 
is  the  law,  and  so  are  the  reasons  upon  which  its  sages  have  seen 
fit  to  erect  distinctions. 

"  The  only  question  now  is,  whether  we  shall  adopt  the  analogy 
of  this  distinction  in  regard  to  property.  The  court  are  disposed 
to  do  it,  for  two  reasons  :  1.  If  we  hold  the  sheriff  and  other  of- 
ficers liable,  in  the  case  of  property  attached  on  mesne  process, 
only  for  ordinary  care  and  diligence,  such  as  other  bailees  for  pay 
are  required  to  exercise,  we  place  the  liability  upon  a  reasonable 
basis ;  whereas  the  rigorous  accountability  imposed  upon  certain 
classes  of  bailees,  on  account  of  some  supposed  facility  or  temp- 

1  Mildmay  v.    Smitli,   2   Saund.    343,  2  12   Mod.   10;    O'Neil  v.   Marson,   5 

n.    3;  Clerk   v.    Withers,   2   Ld.    Kayin.     Burrow,  2812;  2  Saund.  244,  note  a. 
1075.  3  Cases   cited   above,  and   note   to   2 

Saund.  345. 

[259] 


§292 


CUSTODY   OF   ATTACHED    PROPERTY.         [CHAP.  XTI. 


tation  -wliich  the^^  have  been  said  to  possess  for  collusive  rescues 
or  robberies,  is  not  founded  upon  any  just  warrant,  either  of 
sound  judgment  or  constant  experience.  I  refer  to  the  cases  of 
common  carriers,  and  sheriffs,  in  regard  to  property  taken  on  final 
process.  2.  We  think  there  is  far  more  reason  for  the  distinction 
which  we  here  make,  in  regard  to  the  liability  of  sheriffs  for  the 
keeping  of  goods  on  mesne  and  final  process,  in  analogy  to  their 
different  liability  for  keeping  the  body  when  arrested  on  those 
different  processes,  than  there  is  for  the  distinction  made  in  this 
latter  case.  For  when  property  is  taken  on  final  process,  it  is  to 
be  kept  but  a  short  time,  at  longest,  so  that  it  may  be  closely 
watched,  and  kept  with  this  severe  diligence  for  a  few  days, 
without  materially  interfering  with  the  other  duties  of  the  sheriff. 
But  in  the  attachment  of  property  on  mesne  process,  in  matters 
of  collection,  there  will  ordinarily  be  a  delay  of  from  six  to 
eighteen  months,  and  in  matters  of  controversy  this  delay  will  be 
extended  to  many  years ;  and  to  require  the  sheriffs  to  keep  all 
property,  by  them  attached  on  mesne  process,  at  all  hazards,  ex- 
cept inevitable  accident,  or  public  force,  would,  of  course,  justify 
an  expense  in  proportion  to  the  degree  of  responsibility  required, 
and  would  thus,  in  many  cases,  defeat  the  object  of  the  attach- 
ment, by  consuming  the  property  in  needless  expense.  We 
think,  then,  there  is  very  good  reason  why  the  officer  attaching 
property  on  mes7ie  process  should  only  be  liable  to  the  same  ex- 
tent as  bailees  for  hire.  If  he  return  the  attachment,  he  is,  primd 
facie,  liable  to  produce  the  property  on  execution,  but  as  we 
think,  may  excuse  himself  by  showing  that  it  is  not  in  his  power, 
and  that  he  has  been  guilty  of  no  fault."  ^  The  same  doctrine 
was  held  in  New  Hampshire.^ 


1  Bridges  v.  Perry,  14  Vermont,  262 ; 
Smith  V.  Church,  27  Ibid.  168.  In  Briggs 
V.  Taylor,  28  Vermont,  180,  this  subject 
came  again  before  tlie  same  court,  when 
Redfield,  C.  J.,  presented  the  following 
views:  "Asa  new  trial  becomes  neces- 
sary, it  will  be  of  some  importance  to 
inquire  in  regard  to  tlie  proper  mode  of 
defining  the  duty  of  the  officer  in  keep- 
ing goods  attached  on  mesne  process.  It 
is  usually  defined  in  practice,  in  this 
State,  certainly  so  far  as  we  know,  much 


as  it  was  in  this  case,  by  the  use  of  the 
terms  '  ordinary  and  common  care,  dili- 
gence, and  prudence.'  And  it  is  proba- 
ble enough  these  terms  might  not  always 
mislead  a  jury.  But  it  seems  to  us,  they 
are  somewliat  calculated  to  do  so.  If 
the  object  be  to  express  the  medium  of 
care  and  prudence  among  men,  it  is  cer- 
tain these  terms  do  not  signify  a  fixed 
quantity  of  mediocrity  even.  For  if  so, 
tliey  would  not  be  susceptible  of  the 
degrees  of  comparison,  as  more  ordinary 


[260] 


2  Kendall  v.  Morse,  43  New  Hamp.  553. 


CHAP.  XII.]        CUSTODY   OF   ATTACHED   PROPERTY. 


292  a 


§  292  a.  It  is  of  special  importance  that  an  officer  should  not 
leave  attached  property  in  the  possession  of  the  defendant,  unless 
authorized  thereto  by  some  statutory  provision.  The  possession 
of  personal  property  is  the  only  mdicium  of  ownership  ;  and  to 
suffer  a  debtor  to  retain  possession  of  his  property  after  it  has 
been  attached  is  primd  facie  evidence  that  the  attachment  is 
fraudulent  in  respect  to  other  creditors ;  whose  attachments,  or  a 
bond  fide  purchase  from  the  defendant,  will  prevail  against  the 
attachment  whose  lien  has  thus  been  lost.^  And  in  such  case  it 
has  been  held,  that  the  officer  has  not  even  constructive  posses- 
sion of  the  property .2  Hence,  he  cannot,  consistently  with  the 
preservation  of  his  lien,  constitute  the  defendant  his  agent  to 
keep  the  property.^  But  though  the  lien  will  be  lost  by  suffering 
the  property  to  go  back  into  the  possession  of  the  debtor,  that 
result  will  not  be  produced  by  the  defendant  or  his  family  being 
allowed,  without  interfering  with  the  officer's  possession,  to  use 
such  articles  as  will  not  be  injured  by  such  use.  Therefore, 
where  attached  effects  were  left  in  the  house  inhabited  by  the 
defendant,  in  the  charge  of  a  keeper  appointed  by  the  officer, 
and  the  keeper  suffered  the  defendant's  family  to  use  them,  the 
court,  finding  that  the  use  was  permitted  from  motives  of  hu- 
manity and  compassion,  and  not  with  a  design  to  cover  the  prop- 


and  most  ordinary,  which  medium,  and 
middle,  and  mean,  are  not.  The  truth 
is,  that  ordinary  and  middling  and  medi- 
ocrity even,  when  applied  to  character, 
do  import  to  tlie  mass  of  men,  certainly, 
a  very  subordinate  quality  or  degree ; 
something  quite  below  that  which  we 
desire  in  an  agent  or  servant,  and  which 
we  have  the  right  to  require  in  a  public 
servant,  especially.  A  man  who  is  said 
to  be  middling  careful,  or  ordinarily  care- 
ful, is  understood  to  be  careless,  and  is 
sure  never  to  be  trusted.  .  .  .  The  court, 
in  Bridges  v.  Perry,  as  will  "be  obvious 
from  a  careful  examination,  had  no  pur- 
pose of  excusing  this  class  of  officers 
from  any  degree  of  care  and  diligence, 
which  careful  men  would  expect  under 
tiie  circumstances.  And  this,  it  seems 
to  us,  is  the  true  measure  of  liability,  in 
all  cases  of  bailment.  The  bailee  is 
bound  to  tliat  degree  of  diligence,  which 
the  manner  and  nature  of  his  employment 
make  it  reasonable    to  expect  of  him  ; 


any  thing  less  than  this  is  culpable  in 
him,  and  renders  him  liable.  The  con- 
duct of  men  in  general  in  the  region 
where  the  attachment  is  made,  may 
be  some  guide  to  what  ought  to  be 
required  of  the  defendant  in  keeping 
property  attached.  We  mean,  of  course, 
prudent  and  careful  men ;  for  no  one  is 
expected  to  go  very  essentially  beyond 
the  common  custom  of  the  country  in 
such  matters,  as  it  must  be  attended  with 
extraordinary  expense,  and  a  question 
might  tliereby  arise  as  to  the  propriety 
of  incurring  such  expense."  See  Moore 
V.  Westervelt,  1  Bosworth,  357. 

1  Gower    v.   Stevens,    19   Maine,   92 
Dunklee   v.   Fales,   5   New    Hanip.  527 
Pomroy     v.    Kingslcy,    1     Tyler,     294 
Taintor  v.  Williams,  7  Conn.  271  ;  Baker 
V.    Warren,   6    Gray,   527 ;    Flanagan   v. 
Wood,  33  Vermont,  832. 

2  Knap    V.    Sprague,    9    Mass.    258 ; 
Pillsbury  v.  Small,  19  Maine,  435. 

3  Gower  v.  Stevens,  19  Maine,  92. 

[261] 


§  292  d  CUSTODY   OF   ATTACHED   PROPERTY.         [CHAP.  XII. 

erty  against  creditors  by  a  pretended  attachment,  held  that  the 
attachment  was  not  thereby  dissolved.^  Nor  will  the  hen  be 
lost  by  the  officer's  employing  the  wife  of  the  defendant  as  keeper 
of  the  property,  where  the  law  anthorizes  a  married  woman  "  to 
carry  on  any  trade  or  business,  and  perform  any  labor  or  services 
on  her  sole  and  separate  account."  ^ 

§  292  b.  Where  an  officer  leaves  attached  goods  in  the  posses- 
sion of  the  defendant,  or  has  unauthorizedly  ceased  to  retain 
possession  of  them,  and  another  officer  attempts  to  attach  them, 
notice  to  him  of  the  first  attachment  will  not  prevent  his  acquir- 
ing a  lien  on  them  ;  for,  though  an  attachment  may  have  been 
made,  yet  the  second  officer  may  justly  assume  it  to  have  been 
abandoned,  when  the  possession  of  the  first  officer  was  re- 
linquished.^ But  if  the  second  officer  know  that  there  is  a  sub- 
sistinof  attachment,  and  an  unrescinded  contract  of  bailment, 
although  the  defendant  might  at  the  time  have  possession  of  the 
property,  he  cannot  acquire  a  lien  by  attaching  it.* 

§  292  c.  If  an  officer  suffer  articles  he  has  attached  to  be  mixed 
with  other  articles  of  a  like  kind,  which  had  been  previously  at- 
tached by  another  officer,  who  returns  an  attachment  by  himself 
of  the  whole,  the  special  property  of  the  officer  who  permitted 
the  intermixture  is  lost,  and  the  other  officer  is  entitled  to  hold 
the  articles.^ 

§  292  d.  What  effect  upon  an  attachment  has  the  removal  of 
the  attached  property,  by  the  officer,  beyond  his  bailiwick,  into 
a  foreign  jurisdiction  ?  It  seems  clear  that  the  mere  fact  of  such 
removal,  without  regard  to  the  circumstances  connected  with  it, 
will  not  dissolve  the  attachment.  In  determining  its  effect, 
therefore,  regard  must  be  had  to  the  object  and  manner  of  the 
removal.  The  first  point  to  be  determined  is,  whether  the  pur- 
pose of  the  officer  in  the  removal  was  a  lawful  one ;  and  next, 
whether  his  possession  of  the  property,  personally  or  by  another, 
was  continued.     If  the  purpose  was  lawful  and  the  possession 

1  Baldwin  v.  Jackson,  12  Mass.  131.  v.  Stevens,  19  Maine,  92;  Young  v. 
See  Train  v.  Wellington,  Ibid.  495;  Walker,  12  New  Hamp.  502;  Flanagan 
Young  V.  Walker,  12  New  Hamp.  502.  v.  AVood,  33  Vermont,  332. 

2  Farringtony.  Edgerley,  13  Allen,  453.  *  Young   v.    Walker,  12  New  Hamp. 

3  Bagley  v.  White,  4  Pick.  395 ;  San-  502. 

derson  v.  Edwards,  16  Ibid.  144;  Gower  ^  Gordon  v.  Jenney,  16  Mass.  465. 

[262] 


CHAP.  XII.]        CUSTODY   OF    ATTACHED   PROPERTY.  §  292  e 

continued,  the  attachment  would  not  be  dissolved.  But  if  the 
purpose  was  unlawful,  though  his  possession  remained,  or  if  law- 
ful, and  he  lost  his  possession,  his  special  property  in  the  goods 
would  be  devested.  Thus,  where  an  officer  attached  certain 
sheep  in  Massachusetts,  and  delivered  them  to  a  keeper  in  Rhode 
Island,  taking  his  obligation  to  re-deliver  them  on  demand;  it 
was  held,  that  the  officer's  special  property  was  not  thereby  de- 
termined.^ Here,  the  purpose  was  entirely  lawful,  and  the 
possession  of  the  keeper  was  that  of  the  officer. 

But  where  a  sheriff  attached  certain  cotton  at  Vicksburg,  in 
Mississippi,  and  without  authority  of  law,  or  of  the  parties  to  the 
suit,  shipped  it  to  a  commission  merchant  in  New  Orleans,  with 
instructions  to  sell  it  at  private  sale,  and  remit  the  proceeds  to 
him ;  and  the  proceeds  were  attached  in  the  hands  of  the  mer- 
chant by  another  creditor  of  the  defendant,  and  the  Vicksburg 
sheriff  claimed  them ;  it  was  held,  that  the  officer  had  violated 
his  official  duty  in  sending  the  cotton  to  New  Orleans,  and  that 
his  special  property  in  it  was  lost.^ 

§  292  e.  The  doctrines  thus  far  stated,  apply  to  the  acts  of  the 
officer  himself.  We  come  now  to  a  class  of  cases  which,  for  con- 
venience, require  a  separate  notice,  as  involving  the  results  of  acts 
done  by  parties  other  than  the  officer,  though  the  general  prin- 
ciples are,  on  the  whole,  similar.  It  is  customary,  and  often 
necessar}^,  for  an  attaching  officer  to  place  attached  property,  for 
safe  keeping,  in  charge  of  a  servant  appointed  by  himself,  whose 
possession  is  his  possession.  In  such  case  the  lien  of  the  attach- 
ment is  in  no  sense  lost  by  the  officer's  possession  ceasing  to  be 
personal.  But  if  the  servant  placed  in  charge  of  the  property 
abandon  it,  and  it  come  into  the  possession  of  an  adverse  claim- 
ant,-'^ or  be  attached  by  another  officer,*  the  lien  of  the  first  attach- 
ment will  be  lost. 

In  such  cases,  what  act,  what  species  of  possession,  and  what 
degree  of  vigilance,  will  constitute  legal  custody,  is  often  a  ques- 
tion of  difficulty,  depending  upon  a  variety  of  circumstances,  hav- 
ing respect  to  the  nature  and  situation  of  the  property,  and 
the  purposes  for  which  custody  and  vigihmce  are  required;  such 


'j74. 


J  Brownell  f.  Manchester,  1  Pick.  232.  3  Carrington  v.  Smith,  8  Pick.  419. 

2  Dick  V.  Bailey,  2  Louisiana  Annual  *  Sanderson  v.  Edwards,  10  Pick.  144. 


[2G3] 


§  293  CUSTODY   OF   ATTACHED    PROPERTY.         [CHAP.  XII. 

as  protection  from  depredation  by  thieves,  preservation  from 
tlie  weather  and  other  causes  of  damage,  and  especially  giving 
notice  to  other  officers,  and  to  all  persons  having  conflicting 
claims.^ 

Where  wood  and  lumber  lying  on  a  wharf  were  attached,  and 
placed  by  the  officer  in  charge  of  a  keeper,  and  on  a  Sunday 
morning  the  keeper  went  away  from  the  wharf,  and  returned  in 
the  afternoon,  having  in  the  mean  time  secured  the  property  in 
the  manner  usual  on  Sundays,  by  locking  the  gates  of  the  wharf 
and  taking  the  key  with  him ;  it  was  held,  that  there  was  no  neg- 
lect on  the  part  of  the  keeper,  that  his  custody  was  still  legal,  and 
that  the  attachment  was  not  abandoned.^  So,  Avhere  an  attach- 
ment was  levied  on  a  parcel  of  hewn  stones  lying  scattered  about 
on  the  ground,  which  were  placed  by  the  officer  in  charge  of  the 
plaintiff,  whose  place  of  bushiess  was  about  fifty  or  sixty  rods 
from  the  place  where  the  stones  lay,  and  in  sight  of  them,  and 
whose  boarding-house  was  also  in  sight  of  them ;  it  was  held, 
that,  though  no  removal  of  the  stones  took  place,  yet  the  officer 
remained  in  the  constructive  possession  of  them.  The  court 
said:  "It  is  not  necessary,  to  continue  an  attachment,  that  an 
officer  or  his  agent  should  remain  constantly  in  the  actual  posses- 
sion. The  nature  of  the  possession  and  custody  which  an  officer 
is  to  keep,  will  depend  upon  the  nature  and  position  of  the  prop- 
erty, as  ships,  rafts,  piles  of  lumber,  masses  of  stone,  or  lighter,  or 
more  portable,  or  more  valuable  goods.  In  general  it  may  be 
said  that  it  shall  be  such  a  custody  as  to  enable  an  officer  to  re- 
tain and  assert  his  power  and  control  over  the  property,  so  that 
it  cannot  probably  be  withdrawn,  or  taken  by  another  without 
his  knowing  it.  Here,  it  is  manifest  the  officer  did  not  intend  to 
abandon  the  attachment,  and  that  the  measures  he  took,  consider- 
ing the  bulky  nature  of  the  property,  and  the  situation  in  which 
it  was  placed,  were  sufficient  to  continue  his  possession  and  pre- 
serve his  attachment."^ 

§  293.  As  previously  stated,*  the  officer  must  comply  with  all 
the  requirements  of  the  law,  or  show  some  legal  excuse  for  not 
doing  so.     We  will,  therefore,  consider  what  will,  and  what  will 

1  Sanderson  v.  Edwards,  16  Pick.  144.  ^  Hemmenway  v.  Wheeler,  14   Pick. 

2  FeUyplace  v.  Dutch,  13  Pick.  388.         408. 

*  Ante,  §  291. 
[264] 


CHAP.  Xir.]        CUSTODY   OF   ATTACHED   PROPEKTY.  §  295 

not,  excuse  an  officer,  for  not  having  attached  property  forthcom- 
ing on  the  execution. 

§  294.  Of  sufficient  excuse.  There  can  be  no  doubt  that  an 
officer  ma}^  excuse  his  failure  to  have  property  in  hand  to  answer 
the  execution,  by  showing  that,  though  attached  as  the  property 
of  the  defendant,  it  was,  in  fact,  not  his.  Whether,  if  this  fact 
was  known  to  him  when  he  levied  the  attachment,  and  he,  not- 
withstanding, made  the  levy,  and  returned  the  property  as  at- 
tached, he  could  afterwards  excuse  himself  on  that  ground,  is 
questionable  ;i  but  where,  at  the  time  of  the  levy,  he  believes  the 
property  to  be  the  defendant's,  and  takes  it  as  such,  and  it  turns 
out  afterwards  that  it  was  not,  and  he  fails  to  have  it  ready  to 
meet  the  execution,  he  can  certainly  escape  liability  by  proving 
the  fact  to  have  been  so.^  So,  if  an  officer  attach  property  of  the 
defendant,  which  is  by  law  exempt  from  attachment,  he  cannot 
be  held  responsible  for  its  non-delivery  on  execution,  unless  it 
was  attached  with  the  consent  of  the  defendant.^  So,  if  he  attach 
property  which  is  in  custodia  legis,  and  therefore  not  attachable, 
he  is  not  liable  for  failing  to  have  it  forthcoming  on  execution.* 
And  if  attached  property,  of  which  due  care  is  taken  by  the  offi- 
cer, be  lost  by  fire  or  theft,  the  officer  is  not  liable  for  the  loss : 
otherwise,  however,  if  it  be  burned  or  stolen  while  he  omits  due 
care  to  prevent  such  loss.^ 


§  295.  Of  insufficient  Excuse.  An  officer  cannot  protect  him- 
self from  his  obligation  to  have  the  property  forthcoming  on  exe- 
cution, by  making  return  that  he  attached  it  "  at  the  risk  of  the 
plaintiff.''''  Such  a  return  could  not  affect  the  rights  of  the  cred- 
itor, or  relieve  the  officer  from  any  portion  of  his  responsibility.^ 
Nor  can  he  contest  the  validity  of  the  judgment  against  the 
defendant  in  the  action  in  which  he  attached  the  property,  for 

1  French  v.  Stanley,  21  Maine,  512.  v.  Seymour,  5  Wendell,  309 ;  Mason  v. 

2  Fuller  y.  Ilolden,  4  Mass.  498;  Tyler  Watts,  7  Alabama,  703;  State  v.  Ogle, 
V.  Ulmer,   12  Ibid.   16-3 ;  Denny  v.  Wil-     2  Houston,  371. 

lard,  11  Pick.  519  ;  Canada  v.  South  wick,  •*  Cilley  v.  Jenness,  2  New  Hanip.  87. 

16  Ibid.  556 ;  Dewey  v.  Field,  4  Metcalf,  *  Ante,  §  251 ;  Hale  v.  Duncan,  Bray- 

381 ;  Jordan   v.    Gallup,    16   Conn.    536 ;  ton,  132. 

Cilley  y.. Jenness, 2  New  Hamp.  87;  French  ^  Dorman  v.  Kane,  5  Allen,  38;  Starr 

V.   Stanley,  21   Maine,  512;  Chapman  i\  v.  Moore,  3  McLean,  354. 
Smith,  16  Howard  Sup.  Ct.  114;  Magne  «  Lovejoy  v.  Hutchins,  23  Maine,  272. 

[265] 


§  297  CUSTODY   OF   ATTACHED   PROPERTY.        [CHAP.  XII. 

the   purpose   of    relieving   himself   from   responsibility   for   the 
property.^ 

§  296.  If  an  officer  attach  property  under  an  informal  writ,  and 
afterwards  the  writ  is  altered  and  made  to  assume  a  legal  form, 
and  the  plaintiff  obtain  judgment  upon  it,  the  subsequent  altera- 
tion will  not  excuse  the  officer  from  keeping  the  property  safely, 
that  it  may  be  applied  to  satisfy  the  plaintiff's  judgment,  or  re? 
turned  to  the  defendant,  if  he  should  become  entitled  to  it.^ 

§  296  a.  In  some  States,  two  or  more  courts  of  co-ordinate  ju- 
risdiction direct  their  process  to  the  same  officer.  In  such  case, 
if  he  attach  property  under  a  writ  issued  out  of  one  court,  and 
afterwards  attach  it  again  under  a  writ  from  another  court,  the 
latter  court  may  order  the  property  to  be  sold,  but  can  only  deal 
with  the  excess  of  the  proceeds  of  the  sale  over  the  amount  of  the 
first  attachment.  If  it  assume  to  apply  the  proceeds  to  the  second 
attachment,  and  the  officer  submit  to  its  mandate  to  that  end,  it 
will  form  no  excuse  for  his  not  having  the  proceeds  forthcoming 
to  satisfy  the  first  attachment.^ 

§  297.  The  taking  of  attached  property  out  of  the  officer's  cus- 
tody, by  a  wrong-doer,  without  any  act  of  abandonment  on  the 
part  of  the  officer,  will  not  defeat  the  attachment ;  ^  nor  will  it 
excuse  his  failure  to  have  it  forthcoming  on  execution.^  In  such 
case,  he  may  follow  and  retake  it  wherever  he  may  find  it,  even 
if  taken  into  another  State  ;^  and  he  may  maintain  an  action 
against  the  wrong-doer,  or  against  another  officer  who  sub- 
sequently attached  it.''  In  an  action  against  an  officer  for  such 
a  failure,  the  property  consisted  of  a  quantity  of  logs,  and  he 
offered  to  prove  that  the  logs  were  afloat  in  a  body,  with  a  boom 
around  them,  on  their  way  from  one  point  to  another,  and  that 
the  current  of  the  water  and  the  power  of  the  wind  were  so  great, 
that  the  officer  with  any  force  he  could  command,  could  not  stop 

1  West  V.   Meserve,   17  New  Hamp.  ^  Lovell  v.  Sabin,  15  New  Harap.  29. 
432.  "  Utley   v.    Smith,   7    Vermont,   154; 

2  Childs  V.  Ham,  23  Maine,  74.  Rhoads  v.  Woods,  41  Barbour,  471. 

3  Weaver  v.  Wood,  49  California,  297.  "^  Butterfield  v.  Cleraence,  10  Gushing, 
*  Harriman  v.   Gray,  108  Mass.  229;     269. 

Lovell  V.  Sabin,  15  New  Hamp.  29. 
[266] 


CHAP.  XII.]        CUSTODY   OF   ATTACHED   PROPERTY.  §  297  a 

the  logs  in  his  precinct,  and  that  the  parties  in  possession  of  them 
were  able  to  resist,  and  did  successfully  resist,  his  taking  or  hold- 
ing possession  of  the  logs,  until  they  had  arrived  in  another 
county ;  it  was  held,  that  the  evidence  was  rightly  rejected ;  the 
facts,  if  true,  constituting  no  defence.^ 

§  297  a.  If  the  officer  act  under  statutory  provisions  which 
dispense  witli  his  actual  custody  of  the  attached  property,  and, 
wdiile  the  property  is  out  of  his  actual  custody,  it  be  wrongfully 
taken  away  and  sold  by  the  defendant,  he  cannot  be  held  respon- 
sible for  not  producing  it  on  execution.  This  was  decided  in 
Massachusetts,  under  a  statute  in  these  words:  "When  an  attach- 
ment is  made  of  any  articles  of  personal  estate,  which  by  reason 
of  their  bulk,  or  other  cause,  cannot  be  immediately  removed,  a 
copy  of  the  writ  and  of  the  return  of  the  attachment  may,  at  any 
time  within  three  days  thereafter,  be  deposited  in  the  office  of  the 
clerk  of  the  town  in  which  it  is  made,  and  such  attachment  shall 
be  equally  valid  and  effectual,  as  if  the  articles  had  been  retained 
in  the  possession  and  custody  of  the  officer."  The  officer  attached 
property  which,  by  reason  of  its  nature  and  bulk,  could  not  be 
easily  removed,  and  the  defendant,  without  his  knowledge  or  con- 
sent, removed  and  sold  it.  There  was  no  proof  of  negligence  or 
official  misconduct  on  the  part  of  the  officer,  or  that  the  loss  of 
the  property  could  have  been  prevented  by  any  care  on  his  part, 
without  retaining  the  possession.  The  court  said:  "  The  language 
of  the  statute  is  this :  '  Such  attachment  shall  be  equally  valid 
and  effectual,  as  if  the  articles  had  been  retained  in  the  possession 
and  custody  of  the  officer.'  We  think  it  follows  clearly  that  prop- 
erty thus  attached,  although  a  lien  is  created  upon  it  for  the  ben- 
efit of  the  creditor,  is  not  to  be  regarded  as  in  the  possession  and 
custody  of  the  officer,  and  that  no  such  responsibility  devolves 
upon  him  as  if  it  were.  .  .  .  We  do  not  mean  to  imply  that  the 
officer  might  not  be  responsible  for  any  neglect  or  misconduct  in 
relation  to  the  property.  If  there  were  any  collusion  wdth  the 
debtor,  wrongful  omission  to  make  the  attachment  known  to  him, 
or  neglect  of  interfering  to  protect  the  property,  when,  by  a 
change  of  circumstances,  its  removal  and  reduction  into  the 
officer's  possession  became  proper  or  necessary,  the  rule  might  be 

1  Lovejoy  v.  Hutchins,  23  Maine,  272. 

[267] 


§  300         CUSTODY  OF  ATTACHED  PROPERTY.   [CHAP.  XH. 

different.     We  only  decide  that  the  officer  is  not  responsible  as  if 
the  goods  were  in  his  actual  custody."  ^ 

§  298.  The  capture  by  a  hostile  force  of  that  part  of  an  officer's 
precinct  in  which  he  had  attached  property,  will  not  excuse  him 
from  producing  the  same  on  execution,  unless  the  common  conse- 
quences of  a  capture,  according  to  the  laws  of  war,  should  follow  ; 
such  as  restraint  upon  the  persons  of  the  inhabitants  captured, 
which  would  prevent  their  removal,  and  upon  their  effects,  so 
that  they  could  not  be  withdrawn  from  the  control  of  the  captors. 
If  the  capture  is  not  attended  with  these  effects,  there  is  no  reason 
wh}''  the  obligation  of  any  citizen,  created  before  the  capture, 
should  be  destroyed  or  impaired.^ 

§  299.  The  removal  of  an  officer  from  office,  between  the  time 
of  levying  the  attachment  and  that  of  the  issue  of  execution, 
will  not  excuse  his  failure  to  produce  the  property  to  meet  the 
execution ;  for  his  special  propert}''  remains,  to  secure  the  plaintiff 
in  the  fruits  of  his  judgment.^  Nor  can  he  escape  liability  for 
such  failure,  because  the  execution  was  delivered  to  another 
officer,  instead  of  him.*  Nor  will  he  be  relieved  from  his  liability 
for  a  failure  of  his  deputy  to  produce  attached  property  to  an- 
swer the  execution,  by  reason  that  such  failure  took  place  after 
the  latter  had  ceased  to  be  his  deputy.^ 

§  800.  It  is  no  excuse  for  failing  to  have  property  forthcoming, 
that  it  was  of  a  perishable  nature,  and  was,  therefore,  suffered  to 
remain  in  the  defendant's  possession.  The  officer's  duty  is, 
whenever  its  further  detention  would  expose  it  to  ruin,  and  thus 
defeat  the  object  of  the  attachment,  to  expose  it  fairly  to  public 
sale,  and  account  for  only  the  net  proceeds.^ 

The  disposition  of  attached  property,  which  is  perishable  in 
its  nature,  or  the  keeping  of  which  would  be  attended  with  great 
expense,  is,  to  a  considerable  extent,  now  regulated  by  statutory 
provisions,  and  not  left  to  the  discretion  of  the  officer.  The  court 
in  which  the  suit  is  pending  is,  in  many  States,  authorized  to 

1  Hubbell  V.  Root,  2  Allen,  185.  Lawrence    v.    Rice,    12    Metcalf,    527  ; 

2  Congdon  v.  Cooper,  15  Mass.  10.  Sagely  v.  Livermore,  45  California,  613. 

3  Tukey   v.    Smith,    18    Maine,    125;  <  Lovell  y.  Sabin,  15  New  Hanip.  29. 
McKay  v.  Harrower,  27   Barbour,   463  ;  ^  Morse  v.  Betton,  2  New  Hamp.  184. 


[268] 


6  Cilley  V.  Jenness,  2  New  Hamp.  87. 


CHAP.  XII.]        CUSTODY   OF   ATTACHED   PROPEETY.  §  301 

order  a  sale  during  the  pendency  of  the  suit.  In  such  a  case  it 
was  held  in  Missouri,  that  the  power  confided  to  the  court  was 
for  tlie  benefit  of  both  parties,  debtor  as  well  as  creditor,  the  ob- 
ject of  the  sale  being  merely  to  change  the  form  of  the  property ; 
and  that  the  plaintiff  had  no  right,  as  in  the  case  of  an  execu- 
tion, to  order  the  officer  to  stop  the  sale  ;  and,  if  the  officer  should 
neglect  to  sell  as  ordered,  his  responsibility  would  depend,  as  in 
similar  cases  of  disobedience  to  the  proper  mandates  of  the  court, 
upon  the  validity  of  the  excuse  he  may  offer  ;  and  the  mere  order 
of  the  plaintiff  would  constitute  none  whatever.^ 

§  301.  An  officer  attached  a  pleasure  carriage  and  several 
wagons  and  sleds,  which  he  left  in  open  fields,  Avhere  they  were 
allowed  to  remain  several  months  exposed  to  the  weather.  He 
was  sued  for  neglect  in  preserving  and  taking  care  of  the  prop- 
erty. At  the  trial  the  plaintiff  insisted,  as  a  matter  of  law,  that, 
as  the  officer  had  permitted  the  property  to  remain  exposed  to  the 
weather,  and  unprotected,  whereby  it  had  suffered  damage  and 
become  reduced  in  value,  it  constituted  such  a  neglect  of  duty 
on  the  part  of  the  officer  as  would  render  him  liable.  But  the 
court  left  the  question  to  the  jury,  to  find  whether  the  officer 
exercised  ordinary  care  and  prudence  in  the  custody  and  preser- 
vation of  the  property  attached  ;  and  instructed  the  jury  that  it 
was  the  duty  of  an  officer  attaching  property  to  use  ordinary  care 
and  prudence  in  its  custody  and  preservation  ;  and  that  ordinary 
care  and  prudence  was  such  as  men  of  ordinary  care  and  pru- 
dence usually  exercise  over  their  own  property ;  and  that  it  was 
for  the  jury  to  say  whether  it  was  common  or  ordinary  care  and 
prudence  to  keep  such  property  as  the  carriage,  wagons,  and 
sleds  in  question  in  the  manner  in  which  they  were  kept.  This 
ruling  of  the  court  was  held  by  the  Supreme  Court  of  Vermont 
to  be  erroneous.  Said  the  court,  "  We  do  not  think  a  judge  is 
ever  bound  to  submit  to  a  jury  questions  of  fact,  resulting  uni- 
formly and  inevitably  from  the  course  of  nature,  as  that  such 
carriages  will  be  injured,  more  or  less,  by  exposure  to  the  weather 
during  the  whole  winter ;  or  that  a  judge  is  bound  to  submit  to  a 
jury  the  propriety  of  such  a  course,  when  it  is  perfectly  notori- 
ous that  all  prudent  men  conduct  their  own  affairs  differently. 
This  uniformity  of  the  course  of  nature  or  the  conduct  of  busi- 

1  Deters  v.  Aehle,  31  Missouri,  380, 

[269] 


§  305         CUSTODY  OF  ATTACHED  PEOrERTY.    [CHAP.  XII. 

ness  becomes  a  rule  of  law.     But  while  there  is  any  uncertainty, 
it  remains  matter  of  fact,  for  the   consideration  of  a  jury.     It 
could   not   be   claimed  that  it  should  be   submitted  to  a  juryj 
whether  cattle  should  be   fed  or  allowed  to  drink,  or  cows  be 
milked."  i 

§  302.  The  expense  attending  the  keeping  of  attached  prop- 
erty is  no  excuse  for  failing  to  produce  it  on  execution.  There- 
fore, where  an  officer  had  attached  certain  cattle,  and  did  not 
have  them  forthcoming  under  the  execution,  and  he  was  sued  for 
his  failure  in  this  respect,  it  was  held,  that  he  could  not  show, 
either  in  bar  of  the  action,  or  in  mitigation  of  damages,  that  the 
country  was,  at  the  time  of  the  attachment,  in  an  impoverished 
state  as  to  fodder  for  cattle,  and  that  had  he  taken  the  cattle  into 
possession,  and  kept  them  for  the  execution,  the  expense  would 
have  exceeded  the  value  ;  and  that,  in  fact,  they  could  not  have 
been  kept  alive.^ 

§  303.  Where  an  officer  is  instructed  by  the  plaintiffs  attorney 
to  deliver  attached  property  to  a  certain  person,  and  take  his  re- 
ceipt therefor,  and  he  does  so,  he  cannot  be  held  to  produce  the 
property  on  execution.^ 

§  304.  In  an  action  against  an  officer  for  failing  to  keep  at- 
tached property,  so  as  to  have  it  on  execution,  he  cannot  be  per- 
mitted to  impeach  the  plaintiff's  judgment,  except,  perhaps,  on 
the  ground  of  fraud.^  Nor  can  he  take  advantage  of  the  loss  of 
the  writ  of  attachment ;  the  fact  of  the  existence  of  which  may 
be  proved  by  parol.^  He  may,  however,  show,  in  mitigation  of 
damages,  that  the  execution  has,  since  suit  brought  against  him, 
been  satisfied ;  but  the  plaintiff  will,  nevertheless,  be  entitled  to 
recover  nominal  damages  and  costs.^ 

§  305.  In  order  to  fix  the  officer's  liability  for  attached  prop- 
erty, it  is  necessary  that  a  demand  should  be  made  of  him  upon 
the  execution.     If  the  execution  be  placed  in  the  hands  of  the 

1  Briggs  V.  Taylor,  28  Vermont,  180.  *  Adams  v.  Balch,  5  Maine,  188 ;  Mc- 

'^  Tyler    v.    Ulraer,    12    Mass.     163;  Comb  i>.  Reed,  28  California,  281. 

Sewall  y.  Mattoon,  9  Ibid.  535;  Newman  ^  Brown   v.   Richmond,   27  Vermont, 

V.  Kane,  9  Nevada,  234.  583. 

3  Rico  V.  Wilkins,  21  Maine,  558.  ^  Brown   v.   Richmond,  27  Vermont, 

683. 
[270] 


CHAP.  Xn.]   CUSTODY  OF  ATTACHED  PKOPERTY.         §  307 

officer  who  made  the  attachment,  he  being  still  in  office,  that  will 
be  sufficient  notice  to  him,  that  the  plaintiff  claims  to  have  the 
attached  goods  applied  to  satisfy  the  execution.^  Where  no  place 
is  prescribed  by  law,  at  which  a  demand  must  be  made,  it  may 
be  at  his  place  of  abode,  or  wherever  he  may  be.  If  the  demand 
should  be  made  of  him  at  a  place  where  the  property  is  not,  and 
he  offers  to  deliver  it  to  the  officer  at  the  place  where  it  is,  it  will 
be  the  duty  of  the  officer  to  repair  to  such  place  to  receive  it  ; 
but  if  he  refuse  to  deliver  it  at  any  place,  this  refusal  will  sub- 
ject him  to  an  action,  whether  the  property  was  at  the  place 
where  demanded,  or  not.^  If  the  property  attached  has  been 
sold  before  judgment  and  execution,  by  consent  of  the  parties,  or 
under  statutory  authority,  the  officer  is  bound  to  keep  the  pro- 
ceeds of  the  sale  in  his  hands  to  answer  the  execution,  and  the 
delivery  of  the  execution  to  him  authorizes  him  to  apply  the 
money  in  his  hands  to  its  satisfaction. ^ 

§  306.  In  connection  with  the  matter  of  the  obligation  of  an 
officer  to  have  attached  property  forthcoming  to  satisfy  the  exe- 
cution, the  question  arose  in  New  York,  as  to  whom  the  execution 
should  be  directed,  where  the  attaching  officer  had  gone  out  of 
office  between  the  time  of  the  attachment  and  that  of  the  issue 
of  the  execution.  In  the  case,  the  execution  was  an  ordinary /eri 
facias^  directed  to  the  sheriff  of  the  count}^,  and  delivered  to  the 
successor  in  office  of  him  who  made  the  attachment.  .  He  demand- 
ed the  attached  property  of  his  predecessor,  who  failed  to  deliver 
it,  and  the  plaintiff  in  the  attachment  sued  him  for  this  failure. 
There  was  no  statutory  provision  directly  applicable  to  such  a 
case,  and  the  court  considered  the  question  on  principle,  and  by 
analogy,  and  came  to  the  conclusion  that  "the  plaintiff  was  ahead 
of  his  time  in  demanding  the  attached  property  before  he  had 
issued  a  proper  execution ;  "  which  would  have  been  a  special 
one  against  the  attached  property,  and  should  have  been  deliv- 
ered to  the  person  who,  as  sheriff',  had  levied  the  attachment ; 
and  not  having  been  delivered  to  him,  he  could  not  be  made 
liable  for  failing  to  deliver  the  property  to  his  successor.'* 

§  307.  While  the  attachment  is  pending,  can  the  defendant 

1  Humphreys  v.  Cobb,  22  Maine,  380.  »  Eastman  v.  Eveleth,  4  Metcalf,  137. 

'^  Scott  V.  Crane,  1  Conn.  255 ;  Dunlap  *  McKay  v.   Harrower,   27   Barbour, 

V.  Hunting,  2  Denio,  643.  463. 

[271] 


§  309  CUSTODY   OF   ATTACHED   PROPERTY.        [CHAP.  XII. 

maintain  an  action  against  the  officer  for  damage  done  to  the 
property  through  his  negligence  ?  In  Maine,  it  was  decided  that 
he  cannot,  because  during  the  pendency  of  the  attachment  the 
officer  is  liable  to  the  plaintiff  therein,  whose  claim  is  paramount 
to  that  of  the  defendant,  until  the  attachment  is  dissolved ;  and 
that  a  right  of  action  does  not  accrue  to  the  defendant  until  he  is 
entitled  to  a  return  of  the  property,  when  he  will  have  a  full 
claim  to  indemnity. ^  In  Vermont,  however,  the  opposite  ground 
was  taken,  so  far  as  to  allow  the  attachment  defendant  to  sue  the 
officer  in  such  case,  pending  the  attachment ;  but  it  was  intimated 
that  the  attachment  plaintiff  might  show  his  interest  in  the 
recovery,  and  that  the  court  would  thereupon  order  a  stay  of  ex- 
ecution till  the  creditor's  rights  were  determined,  or  might  re- 
quire the  money  to  be  paid  into  court  to  be  held  for  the  benefit 
of  the  creditor,  if  he  should  finally  recover.^ 

§  308.  In  an  action  by  the  attachment  defendant  against  the 
officer,  for  having  lost  or  wasted  a  portion  of  the  property,  the 
latter  may  excuse  himself  from  liability  by  showing  that  he  had 
applied  the  amount  to  the  defendant's  use,  by  paying  with  it  the 
expenses  of  keeping  the  property ,2  or  by  satisfying  with  it  other 
executions  against  the  defendant.* 

§  309.  Where  an  officer  fails  to  keep  attached  property  to  an- 
swer the  execution,  there  is  no  reason  why  he  should  be  subjected 
to  a  different  rule  of  damages  from  that  which  prevails  in  actions 
generall}^  against  officers  for  neglect  or  failure  of  duty;  that  is, 
the  actual  injury  sustained  by  the  plaintiff  by  reason  of  the  neg- 
lect or  failure.  The  value  of  the  property  attached,  if  less  than 
the  amount  of  the  plaintiff's  judgment,  or  the  amount  of  the  lat- 
ter, where  the  value  of  the  property  is  greater,  will  generally  be 
primd  facie  the  measure  of  damages,  subject  to  be  mitigated  by 
evidence  produced  by  the  officer.^  Therefore,  where  a  number 
of  successive  attachments  were  laid  on  property;  and  all  the 
plaintiffs,  except  him  whose  writ  was  last  levied,  believing  that 
the  property  would  lessen  in  value,  and  that  the  proper  season 
for  selling  it  would  be  lost,  if  it  should  be  kept  until  final  judg- 

1  Bailey  v.  Hall,  16  Maine,  408.  *  Bennett  v.  Brown,  31  Barbour,  158 ; 

2  Briggs  V.  Taylor,  35  Vermont,  57.  20  New  York,  99. 

8  Twombly   v.  Hunnewell,  2  Maine,  ^  Sedgwick  on  Damages,  539-543. 

221. 

[272] 


I 


CHAP.  XII.]         CUSTODY   OF   ATTACHED   PROPERTY.  §  311 

raent  could  be  obtained,  directed  the  officer  to  sell  it,  and  hold 
the  proceeds  to  satisfy  the  judgments  to  be  recovered,  in  the  order 
of  their  respective  attachments  ;  and  the  defendant  assented  to 
the  sale,  which  took  place  ;  and  a  greater  sum  was  produced  than 
would  have  been,  if  the  property  had  been  kept  and  sold  upon 
execution,  but  not  sufficient  to  satisfy  all  the  attachments  ;  and 
the  last  attacher  got  nothing,  and  brought  suit  against  the  officer ; 
it  was  held,  that,  though  he  had  departed  from  the  line  of  official 
duty,  and  the  plaintiff  was,  therefore,  entitled  to  recover  dam- 
ages, yet,  as  the  plaintiff  would  have  got  nothing  if  the  officer 
had  performed  his  duty,  nominal  damages  only  could  be  recov- 
ered.^  But  an  officer  is  not  entitled  to  have  a  reduction  made 
from  the  full  value  of  the  property,  in  mitigation  of  damages,  for 
the  expenses  which  might  have  attended  the  keeping,  had  it  been 
kept  safely .2 

§  310.  If  an  officer  state  in  his  return  the  value  of  property 
attached,  we  have  seen  that  he  is  primd  facie  bound  by  it,  and 
the  burden  is  on  him  to  show  that  the  valuation  was  incorrect.^ 
When  sued  for  not  having  the  property  forthcoming  on  execu- 
tion, if  there  be  no  other  evidence  of  value  than  that  furnished 
by  the  return,  the  officer  will  be  concluded  by  it ;  *  and  so,  it 
seems,  if  it  should  appear  that  the  plaintiff  relied  upon  the  return, 
and  was  thereby  led  to  abstain  from  efforts  to  get  further  security.^ 

§  311.  As  to  the  matter  of  expenses  attending  the  keeping  of 
attached  property,  there  can  be  no  doubt  that  the  general  prin- 
ciple is,  that  where  an  officer  is  required  to  perform  a  duty  in- 
volving disbursements  of  money  out  of  his  pocket,  he  must  be 
reimbursed.  When  personal  property  is  attached,  it  is  to  be 
kept  by  the  officer  at  the  expense  of  the  defendant.  If  the  de- 
fendant be  unwilling  to  incur  this  expense,  he  must  replevy  it,  or 
procure  it  to  be  receipted.  If  the  officer  afterwards  receives  an 
execution,  he  sells  the  property,  and  out  of  the  proceeds  takes 
his  pay  for  the  expense  of  keeping,  and  applies  the  remainder  on 
the  execution.^    Thus  the  defendant  pays  for  the  keeping.    If  the 

1  Rich  V.  Bell,  16  Mass.  294.  4  French  v.  Stanley,  21  Maine,  512. 

2  Lovejoy  v.  Hutcliins,  23  Maine,  272;  5  Allen  v.  Doyle,  .33  Maine,  420. 
Tyler  v.  Ulnier,  12  Mass.  1G3;  Sewall  v.  o  Hanness  v.  Smith,  1  Zabriskie,  495 ; 
Mattoon,  9  Il)id.  535.  Dean  v.  Bailey,  12  Vermont,  142;   Mc- 

3  Ante,  §  206.  Neil  v.  Bean,  32  Ibid.  429. 

18  [273] 


§  311  CUSTODY   OF   ATTACHED   PROPERTY.       [CHAP.  XII. 

defendant  settles  the  debt  with  the  phiintiff,  so  that  no  execution 
comes  into  the  officer's  hands,  on  which  to  make  a  sale,  tlie  officer 
may  sustain  an  action  against  the  defendant  for  the  expense  of 
the  keeping ;  ^  but  he  has  no  such  lien  on  the  property  as  will  en- 
able him,  under  such  circumstances,  to  hold  it  for  the  payment 
of  such  expense.^  If  the  property  be  sold  by  the  officer,  and 
thereafter  the  defendant  satisfy  the  attachments,  that  Avill  not 
deprive  the  officer  of  the  right  of  retaining  the  expense  of  keep- 
ing out  of  tlie  money  in  his  hands.^  If  there  should  be  a  judg- 
ment for  the  defendant,  or  the  suit  be  dismissed,  the  plaintiff  will 
be  liable  for  the  expenses.*  It  was  held  in  Vermont,  that  if  the 
officer  use  the  property  —  as,  for  instance,  ahorse — sufficiently 
to  pay  for  its  keeping,  he  cannot  make  the  plaintiff  pay  for  such 
keeping.^ 

1  Dean  f.  Bailey,   12  Vermont,  142;  *  Phelps    v.    Campbell,   1   Pick.   59; 
Sewall  V.  Mattoon,  9  Mass.  535.  Tarbell  v.  Dickinson,  3  Cashing,  345. 

2  Felker  v.  Emerson,  17  Vermont,  101.  ^  Dean   v.   Bailey,  12  Vermont,   142. 

3  Gleason  v.  Briggs,  28  Vermont,  135.  Ante,  §  203. 

[274] 


CHAP.  Xin.]  BAIL   AND   DELIVERY   BONDS.  §  313  h 


CHAPTER     XIII. 

BAIL   AND   DELIVERY  BONDS. 

§  312.  I.  Bail-Bonds.  In  many  of  the  States,  provisions  exist 
for  the  dissolution  of  an  attachment,  upon  the  defendant  giving 
bond,  with  approved  security,  for  the  payment  of  such  judgment 
as  may  be  recovered  in  the  attachment  suit.  This  is,  in  effect, 
merely  Special  Bail,  and  was  so  regarded  in  Mississippi,  where  it 
was  held,  that  the  abolishment  by  law  of  imprisonment  and  bail 
for  debt  abolished  the  right  to  take  such  a  bond  in  an  attachment 
suit.i  In  some  States,  as  under  the  custom  of  London,  the  de- 
fendant is  not  allowed  to  plead  to  the  action  until  he  has  given 
such  a  bond ;  but  generally  he  may  appear  without  it. 

§  313.  It  is  the  defendant's  right  to  give  this  bond  at  any  time 
before  judgment,  as  well  where  his  effects  are  reached  by  gar- 
nishment, as  where  levied  on  and  taken  into  the  officer's  posses- 
sion.2  This  right  is  a  privilege  accorded  by  law  to,  and  not  a 
duty  enjoined  upon,  the  defendant,  and  the  plaintiff  cannot  com- 
plain if  it  be  not  exercised.^ 

§  313  a.  To  uphold  such  a  bond,  as  against  the  sureties,  it  is 
not  necessary  to  insert  therein  any  consideration,  or,  in  an  action 
on  the  bond,  to  prove  any.  It  is  a  statutory  obligation  for  which 
no  consideration  is  necessary.* 

§  313  h.  In  some  States  this  bond  is  made  in  favor  of  the  offi- 
cer who  executes  the  attachment.  In  the  United  States  District 
Court  for  Wisconsin,  under  a  statute  of  that  State  adopted  by 
that  court,  a  bond  was  given  to  the  marshal  or  his  successor  in 
office  ;  and  the  Supreme  Court  of  the  United  States  held,  that  it 

1  Garrett  w.  Tinnen,  7  Howard  (Mi.),  •*  Watson  v.  Kennedy,  8  Louisiana  An- 

465.     See  Ciiildress  v.  Fowler,  9  Arkan-  nual,  280. 

eas,  159;  Gillaspie   v.  Clark,   1   Tennes-  *  Biidersee  i;.  Aden,  62  Barbour,  175  ; 

see,  2.  12  Abbott  Pract.  n.  s.  324. 


''  Lecesne  v.  Cottin,  10  Martin,  174. 


[275] 


§  316  a  BAIL   AND   DELIVERY  BONDS.  [CHAP.  XIIL 

might  be  sued  on,  either  by  the  marshal  to  whom  it  was  given, 
after  he  had  ceased  to  be  marshal,  or  by  his  successor  in  office.^ 

§  314.  In  taking  this  bond  the  officer  is  not  to  be  regarded  as 
the  agent  of  the  plaintiff,  so  as  to  render  the  plaintiff  responsible 
for  his  neglect  of  duty.  Therefore,  where  the  officer,  without 
levying  the  attachment,  suffered  the  defendant,  without  the 
plaintiff's  knowledge,  to  execute  a  bond,  with  surety,  to  pay  the 
debt ;  which  was  considered  not  to  be  in  conformity  to  the  stat- 
ute governing  the  case  ;  the  court  regarded  the  officer  as  rather 
the  agent  of  the  obligors  in  the  bond,  and  that  the  plaintiff  was 
entitled  to  his  recourse  on  the  bond  as  a  good  common-law  bond, 
and  that  the  obligors,  if  injured  by  the  act  of  the  officer,  should 
look  to  him  for  redress.^ 

§  814  a.  If  the  terms  of  the  bond  be  in  substantial  compliance 
with  the  statute,  it  is  sufficient,  where  the  statute  does  not  pre- 
scribe the  form  of  the  instrument.^ 

§  815.  Where  an  attachment  issues  against  two  joint  debtors, 
and  their  joint  and  separate  effects  are  attached,  it  was  held  by 
the  United  States  Circuit  Court  of  the  District  of  Columbia, 
that  one  of  them  could  not  appear  and  give  bail  to  discharge  his 
separate  effects,  unless  bail  and  appearance  were  entered  for 
both.* 

§  316.  If  the  statute  requires  more  than  one  surety,  and  only 
one  is  given,  the  obligors,  when  sued  on  the  bond,  cannot  object 
to  its  validity  on  that  account ;  for  the  plurality  of  sureties  is  for 
the  benefit  of  the  creditor,  and  he  may  dispense  with  more  than 
one,  without  invalidating  the  instrument.^ 

§  316  a.  If  there  be  no  statute  authorizing  it,  the  court  has  no 
power  to  order  new  sureties  to  be  given  in  such  a  bond,  on  the 
ground  that  those  first  taken  have  become  insolvent.  The  law 
is  complied  with  by  the  giving  of  the  bond,  without  reference  to 
the  subsequent  ability  of  the  sureties  to  respond  to  its  obligation.^ 

1  Huff  V.  Hutchinson,  14  Howard  Sup.  ^  Ward  v.  Whitney,  3  Sandford,  Sup. 
Ct.  586.  Ct.  399  ;  4  Selden,  442. 

2  Cook  V.  Boyd,  16  B.  Monroe,  556.  ^  Dudley    v.    Goodrich,    16    Howard 

3  Curiae  v.  Packard,  29  California,  Pract.  189 ;  Hartford  Quarry  Co.  v.  Pen- 
194.  dleton,  4  Abbott  Pract.  460. 

*  Magee   v.   Callan,   4  Cranch,  C.  C. 
251.  t 

[276] 


CHAP.  XIII.]  BAIL   AND   DELIVERY  BONDS.  §  318 

§  316  h.  Where  the  execution  of  such  a  bond  was  resorted  to 
to  discharge  a  garnishee,  and  afterwards,  while  the  suit  was  pend- 
ing, the  defendant  and  the  surety  in  the  bond  both  became  insol- 
vent, and  the  plaintiff  obtained  a  second  attachment  in  the  suit, 
and  summoned  the  garnishee  again  ;  the  second  garnishment  was 
sustained.^ 

§  317.  In  Pennsylvania,  Ohio,  Kentucky,  Illinois,  Mississippi, 
Arkansas,  and  Texas,  from  the  time  of  the  execution  of  the 
bond,  the  cause  ceases  to  be  one  of  attachment,  and  proceeds  as 
if  it  had  been  instituted  by  summons  ;  ^  and  in  South  Carolina 
and  Georgia,  where  the  statute  does  not  declare  that  the  execution 
of  the  bond  shall  have  the  effect  of  dissolving  the  attachment, 
it  is  held,  nevertheless,  that  it  has  that  effect.^  In  Louisiana, 
Article  259  of  the  Code  of  Practice  is  as  follows :  "  The  defend- 
ant, if.  he  appear,  either  in  person  or  by  his  attorney,  may,  in 
every  stage  of  the  suit,  have  such  attachment  set  aside,  by  de- 
livering to  the  sheriff  his  obligation  for  the  sum,  exceeding  by 
one-half  that  which  is  demanded,  with  the  surety  of  a  good  and 
solvent  person,  residing  within  the  jurisdiction  of  the  court 
where  the  action  is  brought,  that  he  will  satisfy  such  judgment 
as  may  be  rendered  against  him  in  the  suit  pending."  Under 
this  provision  it  was  held,  that  a  defendant  executing  the  obliga- 
tion, rendered  himself  liable  to  a  judgment  in  personam,  whether 
he  was  served  with  process  or  not.^ 

But  under  many  attachment  systems  this  bond  may  be  given 
by  third  persons,  without  the  joinder  of  the  defendant  with 
them  ;  and  in  such  case  their  execution  of  the  bond  is  neither  in 
fact  nor  in  law  an  appearance  by  the  defendant  to  the  action,  nor 
does  it  authorize  the  supposition  that  he  had  any  knowledge  or 
notice  of  it,  or  any  opportunity  to  appear  and  defend  it.^ 

§  318.  In  Mississippi,  the  court  seemed  to  consider  that  the 

1  Stewart  v.  Dobbs,  39  Georgia,  82.  3  Fife  v.  Clarke,  3  McCord,  347  ;  Key- 

2  Fitcli  V.  Ross,  4  Sergeant  &  Ravvle,  nolds  v.  Jordan,  19  Georgia,  436.  See 
557 ;  Albany   City  Ins.  Co.  v.  Whitney,     McMillan  v.  Dana,  18  California,  339. 

70  Penn.   State,  248 ;  Parker  v.   Farr,  2  *  Rathbone  v.  Ship  London,  6  Louisi- 

Browne,  331;  Myers  v.  Smith,  29   Ohio  ana  Annual,  439;  Kendall  v.  Brown,  7 

State,  120;  Harper  y.  Bell,  2  Bibb,  221 ;  Ibid.   GG8 ;   Love   v.    Voorhies,    13   Ibid. 

People  V.  Cameron,  7  Illinois  (2  Oilman),  549. 

468  ;    Piiilips    v.   Hines,   33   Mississippi,  &  Qark  v.  Bryan,  16  Maryland,  171. 

163 ;  Morrison  v.   Alphin,  23  Arkansas, 


136  ;  Shirley  v.  Byrnes,  34  Texas,  625. 


[277] 


5  319 


BAIL   AND   DELIVERY   BONDS.  [CHAP.  XITT. 


execution  of  the  bond  released  any  technical  objections  to  the  pre- 
liminary proceedings;^  while  by  the  Supreme  Court  of  the 
United  States,  and  those  of  Missouri  and  Wisconsin,  it  Avas  held, 
that  thereafter  the  defendant  could  not  take  any  exception  to 
the  attachment,  or  to  the  regularity  of  the  proceedings  under  it.^ 
In  Louisiana,  however,  a  different  rule  prevails.  There,  under 
the  statute  cited  in  the  next  preceding  section,  when  property  is 
seized  under  an  attachment,  and  the  defendant  is  not  served  with 
process,  the  court  is  required  to  appoint  an  attorney  to  represent 
him ;  and  it  was  held,  to  be  admissible  for  the  attorney  so 
appointed,  to  show  that  the  property  attached  was  not  the 
defendant's,  and  that,  therefore,  the  court  had  no  jurisdiction  of 
the  action.^  Afterwards,  it  was  decided  that  the  defendant  him- 
self, after  givii^bond,  might  contest  the  truth  of  the  allegation 
on  which  the  arfachment  issued,  in  order  to  procure  the  dissolu- 
tion of  the  attachment;  and  this  expressly  on  the  ground  that  it 
was  necessary  to  relieve  himself  and  his  surety  from  the  obliga- 
tion of  the  bond.*  Subsequently  the  court  further  decided  that 
the  obligors  in  a  bond  of  this  description,  to  which  the  attachment 
defendaiit  was  not  a  party,  might,  when  sued  upon  it,  set  up  as  a 
defence,  that  the  property  was  not  the  defendant's,  and  that  he 
had  not  been  served  with  process,  and  that,  therefore,  the  judg- 
ment against  him  was  a  nullity.^  And  in  Arkansas  it  was  held, 
that  the  execution  of  the  bond  did  not  preclude  the  defendant 
from  interposing  pleas  in  abatement  founded  on  irregularities  in 
the  proceedings.^ 

§  319.  In  New  York,  a  similar  view  was  entertained,  in  an  ac- 
tion on  a  bond,  conditioned  to  pay  the  plaintiff  in  the  attachment 
the  amount  justly  due  and  owing  to  him  by  the  defendant,  at  the 
time  the  plaintiff  became  an  attaching  creditor,  on  account  of  any 
debt  claimed  and  sworn  to  by  the  plaintiff,  with  interest,  costs, 
&c.  The  action  was  against  the  surety  in  the  bond,  and  the  dec- 
laration set  forth  the  affidavit  on  which  the  attachment  issued, 


1  Wharton  v.  Conger,  9  Sinedes  & 
Marshall,  510. 

2  Barry  v.  I'oyles,  1  Peters,  311 ; 
Huff  V.  Hutchinson,  14  Howard  Sup.  Ct. 
586;  Payne  v.  Snell,  3  Missouri,  409; 
Dierolf  y.  Winterfielcl,  24  Wisconsin,  143. 

3  Schlater  v.  Broaddus,  3  Martin, 
N.  8.  321;  Oliver  v.  Gwin,  17  Louisiana, 
28. 

[278] 


*  Paihles  v.  Boux,  14  Louisiana,  82 ; 
Myers  v.  Perry,  1  Louisiana  Annual,  372 ; 
Kendall  v.  Brown,  7  Ibid.  668. 

^  Quine  v.  Mayes,  2  Robinson  (La.), 
510  ;  Bauer  v.  Antoine,  22  Louisiana  An- 
nual, 145;  Edwards  v.  Pratlier,  Ibid.  334. 

<>  (Childress  v.  Fowler,  9  Arkansas, 
159  ;  Delano  v.  Kennedy,  5  Ibid.  467. 


CHAP.  XIII.]  BAIL   AND   DELIVERY   BONDS.  §  320 

the  issuing  of  the  writ,  the  attachment  defendant's  application  to 
the  judge  to  discharge  the  warrant,  and  that,  for  the  purpose  of 
procuring  such  discharge,  the  bond  sued  on  was  executed ;  and 
concluded  with  an  averment  of  the  indebtedness  of  the  attach- 
ment defendant  to  the  plaintiff.  The  question  presented  was, 
whether  the  affidavits  on  which  the  attachment  issued  were  suffi- 
cient to  authorize  the  issuing  of  the  writ.  It  was  decided  that 
they  were  not,  and  therefore,  that  the  proceedings  in  the  attach- 
ment were  void ;  and  such  being  the  case,  that  the  bond  was  also 
void.^ 

This  case  was  under  the  Revised  Statutes  of  New  York,  where 
the  affidavit  for  an  attachment  was  the  foundation  of  the  jurisdic- 
tion ;  and  the  impeachment  of  its  sufficiency  assailed  the  jurisdic- 
tion of  the  court  in  the  attachment  suit.  The  decision  was,  that, 
as  there  was  no  jurisdiction  of  the  suit,  the  bond  could  not  be 
enforced. 

But  where,  as  under  the  New  York  Code  of  Procedure,  the 
attachment  is  not  process  by  which  the  suit  is  commenced,  but 
merely  a  provisional  remedy,  it  was  held,  that  the  statements  in 
the  affidavit  on  which  it  issued  are  not  jurisdictional  facts  ;  that 
the  attachment  is  not  void  if  those  statements  are  insufficient;  and 
that  therefore  the  sufficiency  and  truth  of  those  statements  cannot 
be  inquired  into  in  an  action  on  a  bond  given  to  secure  the  pay- 
ment of  such  judgment  as  might  be  recovered  in  the  action  in 
which  the  attachment  was  issued.^  Much  less  can  the  attachment 
defendant,  in  an  action  on  such  bond,  object  to  the  regularity  of 
the  proceedings  in  the  attachment  suit.^ 

In  California,  in  an  action  on  such  a  bond,  no  proof  is  neces- 
sary of  the  preliminary  proceedings  connected  with  or  preceding 
the  levy  ;  for  the  admission  of  the  levy,  contained  in  the  bond,  is 
enough.* 

§  320.  But  in  a  suit  on  such  a  bond,  is  the  plaintiff  bound,  as 
was  done  in  the  case  just  cited,  to  show  in  his  declaration,  or 
otherwise,  the  facts  necessary  to  give  jurisdiction  to  the  officer 
who  issued  the  attachment,  or  that  the  case  was  one  in  which  an 

1  Cadwell  v.  Colgate,  7  Barbour,  253.  »  Dunn  v.  Crocker,  22  Indiana,  324. 

See  Egan  v.   Lumsden,  2  Disney,  1G8 ;  <  McMillan   v.   Dana,    18    California, 

Bildersee  v.  Aden,  tj2  Barbour,  175.  339. 

■^  Cruyt  V.  rhillips,  lU  Howard  Tract. 
120. 

[279] 


§  322  BAIL   AND   DELIVERY   BONDS.  [CHAP.  XIII.I 

attachment  might  be  issued  according  to  the  statute  ?  This  ques- 
tion was  passed  upon  by  the  New  York  Coui-t  for  the  Correction 
of  Errors,  in  the  negative.  Chancellor  Walwokth,  in  deliver- 
ing his  opinion,  which  was  almost  unanimously  sustained  by  the 
court,  said:  "  I  am  not  aware  of  any  principle  of  the  common  law 
which  requires  the  obligee  in  such  a  bond,  when  he  brings  a  suit 
thereon  against  the  obligors,  to  do  any  thing  more  in  his  declara- 
tion than  to  state  the  giving  of  the  bond  by  the  defendants,  and 
to  assign  proper  breaches  of  the  condition  to  show  that  the  bond 
has  become  forfeited ;  and  to  enable  the  jury  to  assess  the  dam- 
ages upon  such  breaches,  as  required  b}'"  the  statute  relative  to 
suits  upon  bonds  other  than  for  the  payment  of  money.  •  And 
where  the  execution  of  the  bond  is  admitted  or  proved  upon  the 
trial,  and  the  breach  of  the  condition  thereof  is  also  proved,  the 
onus  of  establishing  the  fact  that  the  bond  was  improperly  ob- 
tained, by  coercion  or  otherwise,  as  by  an  illegal  and  unauthorized 
imprisonment  of  the  defendants,  or  in  consequence  of  an  illegal 
detention  of  their  goods  under  color  of  an  attachment  granted  by 
an  officer  who  had  no  authority  to  issue  the  same,  is  necessarily 
thrown  upon  them."  ^ 

§  321.  In  Louisiana,  under  the  article  above  quoted  ,2  it  is  held, 
that  after  the  giving  of  such  a  bond,  the  property  attached  is  no 
longer  under  the  control  of  the  court.  There,  cotton  was  attached, 
and  released  on  a  bond  being  given;  and  afterwards  a  third  party 
intervened  and  claimed  the  cotton  to  be  his ;  but  the  court  re- 
fused to  hear  evidence  or  entertain  the  intervention.  The  Su- 
preme Court  sustained  this  decision,  holding  the  jDroperty  to  be 
no  longer  under  the  control  of  the  court ;  that  the  bond  was  a 
substitute  for  the  property ;  and  that  the  intervenor  must  look  to 
the  property  itself.^ 

§  322.  Such  bond  is  available  to  the  plaintiff  only,  for  the  satis- 
faction of  such  judgment  as  he  may  obtain  against  the  defendant. 
If  he  fail  to  obtain  a  judgment,  the  bond  is  discharged.  Third 
parties,  claiming  the  attached  property,  can  have  no  recourse  upon 

1  Kanouse  i'.  Dormedy,  3  Denio,  667.       277  ;  Benton  v.  Roberts,  2  Louisiana  An- 
^  Ante,  §  317.  nual,  243;  McRae  v.  Austin,  9  Ibid.  360  ; 

2  Dorr  V.  Kershaw,  18  Louisiana,  57 ;  Monroe  v.  Cutter,  9  Dana,  93.  See  Mc- 
Beal  V.  Alexander,   1    Robinson   (La.),     Milian  v.  Dana,  18  California,  339. 

[280] 


CHAP.  XIII.]  BAIL  AND   DELIVERY  BONDS.  §  323 

the  bond,  there  being  no  privity  between  them  and  the  obligors.^ 
And  the  judgment  obtained  against  the  defendant,  ivhere  he  is  not 
a  party  to  the  bond,  must  be  a  valid  judgment,  in  order  to  sustain 
an  action  on  the  bond.  If  the  judgment  be  taken  without  any 
jurisdiction  in  the  court,  no  action  can  be  maintained  on  the  bond 
for  its  satisfaction.^ 

§  322  a.  In  order  to  a  recovery  upon  such  a  bond  it  is  not  neces- 
sary that  the  judgment  against  the  defendant  in  the  attachment 
suit  should  express  that  it  is  with  privilege  on  the  property  at- 
tached. The  obligors  undertake  to  pay  any  judgment  which  may 
be  recovered  against  the  defendant ;  and  as  the  execution  of  the 
bond  authorizes  a  personal  judgment  against  him,  it  is  not  requisite 
that  the  judgment  should  make  reference  to  the  attachment,  in 
order  to  give  a  right  of  action  on  the  bond.^ 

§  322  h.  If  a  bond  be  given  with  condition  in  the  alternative, 
for  the  payment  of  the  debt,  or  for  the  value  of  the  property,  the 
sureties  are  not  entitled  to  have  a  judgment  upon  the  bond  re- 
stricted to  the  value  of  the  property,  but  they  must  pay  the  debt, 
interest,  and  costs.^  And  where  the  bond  stated  that  it  might  be 
satisfied  by  production  of  the  property,  or  in  case  that  should  not 
be  done,  then  that  it  might  be  satisfied  by  payment  of  the  judg- 
ment ;  and  the  obligors  declined  to  do  either  of  those  things,  but 
offered  to  pay  the  value  of  the  property ;  it  was  held,  that  they 
were  bound  to  pay  the  judgment.^ 

§  323.  The  obligation  of  the  bond  cannot  be  discharged  by  a 
surrender  of  the  property  attached.^  Nor  can  the  obligors,  when 
sued  thereon,  defend  themselves  by  showing  that  no  attachment 
was  issued  ;  '^  or  that  the  property  was  not  the  defendant's  when 
it  was  attached  ;  ^  or  that  it  was  not  subject  to  attachment ;  ^  or 

1  Dorr  V.  Kershaw,  18  Louisiana,  57  ;  ^  Beal  v.  Alexander,  1  Robinson  (La.), 
Beal  V.  Alexander,  7  Kobinson  (La.),  349.     277;  Hazelrigg  v.  Donaldson,  2  Metcalfe 

2  Clark  v.  Bryan,  16  Maryland,  171.         (Ky-).  445.     See   Bacon  v.  Daniels,  lltt 
8  Love  V.  Voorliies,  13  Louisiana  An-     Mass.   474.     In    Kentucky   it   was    also 

nual,  549.  held,  that  after  the  giving  of  such  a  bond 

*  Bond  V.  Greenwold,  4  Heiskell,  453.  no  inquiry  as  to  the  property  attached 

*  Goebel  v.  Stevenson,  35  Michigan,  was  pertinent,  and  tlierefore  a  claim  of 
172.  the  property  by  a  third  party  could  not 

6  Dorr  V.  Kershaw,  18  Louisiana,  57.        be    investigated.      Taylor   v.   Taylor,   3 

1  Coleman  v.  Bean,  .32  Howard  Pract.     Bush,  118. 
370;  14  Abbott  Pract.  38 ;  1  Abbott  Ct.  '••  McMillan    v.   Dana,    18    CaUfornia, 

of  Appeals,  394.  339  ;  Bacon  v.  Daniels,  IIG  Mass.  474. 

[281] 


§  323  a  BAIL   AND   DELIVERY  BONDS.  [CHAP.  XIII. 

that  no  property  was  attached  ;  ^  or  that  the  grounds  for  obtain- 
ing tlie  attachment  were  insufficient  ;2  or  lliat  the  sureties  were 
induced  to  execute  it  by  fraud  of  their  principal,  unless  the  at- 
tachment plaintiff  be  connected  with  the  fraud. ^  Nor  are  they 
discharged  by  the  arrest  and  commitment  of  the  defendant  under 
a  ca.  sa.  issued  by  the  plaintiff,  in  the  same  action,  after  the  con- 
dition of  the  bond  is  broken.*  Nor  can  they  object  to  the  amount 
of  the  judgment  recovered  in  the  original  suit.^  Nor  will  it  avail 
them  as  a  defence,  that,  after  judgment  and  execution  were  ob- 
tained against  the  defendant,  they  pointed  out  to  the  plaintiff 
property  of  the  defendant,  out  of  which  he  could  make  his  claim, 
and  at  the  same  time  tendered  him  money  to  defray  the  expenses 
and  charges  of  the  proceeding.^  Where  obligors  in  such  a  bond 
were  sued  thereon,  and  defended,  themselves  upon  the  ground 
that  an  appeal  had  been  prayed  and  allowed  from  the  judgment 
in  tlie  attachment  suit,  it  was  held  to  be  no  defence,  and  that 
it  should  have  been  shown  that  the  appeal  was  pending/  and  unde- 
termined." 

In  Georgia,  where  an  attachment  was  levied  on  slaves,  who 
were  delivered  back  to  the  defendant,  upon  his  giving  bond,  with 
security,  to  "pay  the  said  plaintiff  the  amount  of  the  judgment 
and  costs  that  he  may  recover  in  said  case;  "  and  the  slaves  were 
afterwards  emancipated  by  the  13th  Amendment  to  the  Constitu- 
tion of  the  United  States  ;  it  was  held,  that  the  bond  was  not  to 
deliver  the  property,  but  to  satisfy  the  judgment  recovered  ;  that 
the  rights  of  the  parties  became  fixed  by  the  execution  of  the 
bond,  and  the  return  of  the  slaves  by  the  sheriff  to  the  defend- 
ant; and  that  their  emancipation  did  not  discharge  the  obligation 
of  the  bond.^ 

§  323  a.  When  a  judgment  is  recovered  against  the  surety  in 
such  a  bond,  he  has  a  right  to  tender  to  the  plaintiff  the  full 
amount  of  the  judgment ;  and  if  the  plaintiff  refuses  to  receive 


1  Frost  V.  White,  14  Louisiana  Annual,  *  Murray    v.     Shearer,     7     Gushing, 
140.  333. 

2  Hazelrigg  v.  Donaldson,  2  Metcalfe  5  Morange  v.  Edwards,  1  E.  D.  Smith, 
(Ky.),  445;  Inman  v.   Strattan,  4  Bush,  414. 

445  ;    Bildersee   v.    Aden,    62    Barbour,  <>  Hill  v.  Merle,  10  Louisiana,  108. 

175.  '  Toteet  v.  Boyd,  10  Missouri,  160. 

3  Coleman  v.  Bean,  14  Abbott  Pract.  ^  Irvin  v.  Howard,  37  Georgia,  18. 
38  ;  1  Abbott  Ct.  of  Appeals,  394. 

[282] 


CHAP.  Xril.]  BAIL   AND   DELIVERY  BONDS. 


§323  6 


the  same,  the  surety  is  discharged  from  his  obligation  on  the 
bond.i 

§  823  h.  The  sureties  in  such  a  bond  are  released  by  the  discharge  of 
the  principal  in  bankruptcy  before  judgment  rendered  against  him.^ 


'  Hayes  v.  Josephi,  26  California,  635. 
The  court  said  :  "  Tlie  question  is, 
wiietlier  the  surety  was  disciiarged  by 
the  tender  of  tiie  amount  due  on  the 
judgment,  and  the  refusal  of  M.  (tiie  at- 
tachment plaintiff)  to  accept  it,  under  tiie 
circumstances  stated  in  tlie  answer.  We 
think  he  was.  No  autliority  has  been 
cited  on  eitlier  side,  and  we  have  not 
been  able  to  find  one  in  whicJi  the  pre- 
cise point  involved  in  this  case  was  de- 
cided or  discussed.  There  can  be  no 
doubt  that  the  contract  is  essentially  one 
of  surety.  The  defendant  undertook, 
without  any  valuable  consideration  mov- 
ing to  himself,  to  answer  upon  certain 
contingencies  for  the  debt  of  another. 
True,  he  undertook  to  pay  the  debt  upon 
the  happening  of  the  contingency,  and  in 
this  sense  it  was  his  own  contract,  his 
own  debt,  and  it  became  his  duty  to  pay 
it ;  but  so  it  is  in  everj'  other  case  of 
suretyship.  The  rigiits  of  the  parties 
must  be  determined  upon  the  general 
principles  of  law  applicable  to  contracts 
of  sureties.  .  .  .  The  law  requires  the 
creditor  to  act  in  the  utmost  good  faith 
toward  the  surety,  and  will  not  permit 
him  to  do  any  thing  that  will  unneces- 
sarily tend  to  prejudice  his  interests.  The 
creditor  will  certainly  not  be  permitted 
to  place  obstacles  in  the  way  of  tlie 
surety,  which  tend  to  hinder  him  in  the 
pursuit  of  such  remedies  as  are  guar- 
anteed to  him  by  the  law.  The  surety 
is  entitled  to  pay  the  debt,  and  thereby 
at  once  acquire  the  right  to  proceed 
against  the  jirincipal.  ...  If  it  is  the 
legal  right  of  the  surety  to  pay  the  debt, 
and  at  once  proceed  against  the  principal 
debtor,  it  necessarily  follows,  that  he  is 
f-ntitleil  'to  have  the  money  accejited  by 
the  creditor,  in  order  tliat  he  may  pro- 
ceed. It  is  the  duty  of  the  creditor  to 
receive  it,  and  a  gross  violation  of  duty 
and  good  faith  on  his  part  to  refuse, 
thereby  interposing  an  insurmountable 
obstacle  in  the  vvay  of  the  pursuit  by  the 


surety  of  his  most  prompt  and  efficient 
remedy.  .  .  .  Upon  payment  to  the  cred- 
itor, the  surety  is  entitled  immediately 
to  enforce  payment  from  the  principal, 
and  the  law  imposes  upon  the  creditor 
the  obligation  not  to  interpose  any  obsta- 
cle to  the  immediate  exercise  of  that 
right.  But  without  payment  the  surety 
cannot  recover  against  the  principal.  If 
the  creditor  refuses  to  receive  the  money 
when  tendered,  he  as  effectually  pre- 
vents the  surety  from  promptly  pursu- 
ing liis  most  efficient  remedy,  as  he 
would  by  entering  into  a  valid  contract 
with  the  debtor  to  extend  the  time  of 
payment.  .  .  .  The  obstacle  in  either 
case  is  insurmountable,  and  the  obstruc- 
tion is  placed  in  the  way  of  the  remedy 
by  the  act  of  the  creditor,  and  against 
tlie  will  of  the  surety.  ...  It  is  true 
that  a  tender  by  the  ]>rincipal  debtor  does 
not  discharge  the  debt,  and  he  is  bound 
to  keep  his  tender  good,  and  be  ready  to 
pay  over  the  money  which  belongs  to 
the  creditor  whenever  the  creditor  calls 
for  it.  But,  then,  he  loses  nothing,  and 
is  only  put  to  the  slight  inconvenience 
of  keeping  the  money.  But  there  are 
substantial  reasons  why  a  tender  should 
operate  as  a  discharge  of  a  mortgage,  or 
surety,  which  do  not  apjily  to  the  debtor 
personally.  To  continue  a  mortgage  on 
foot  after  a  tender,  might  tie  up  the  mort- 
gaged projierty  and  greatly  embarrass 
the  mortgagor  in  its  full  enjoyment,  by 
preventing  a  sale  or  mortgage  for  other 
purposes,  and  thus  great  daruage  might 
result  to  him.  So,  also,  in  the  case  of  a 
surety,  a  refusal  to  take  the  money  when 
tendered  might  obstruct  the  surety  in 
pursuing  his  remedy  against  the  princi- 
pal, ami  in  addition  to  the  small  inconven- 
ience of  preserving  the  money  for  the 
creditor,  result  in  its  entire  loss  to  the 
surety." 

■■'  Payne  v.  Able,  7  Busli,  o44 ;  Car- 
penter y.  Turrell,  100  Mass.  450;  Hamil- 
ton V.  Bryant,  114  Ibid.  543. 


§  326  BAIL   AND   DELIVERY  BONDS.  [CHAP.  XIII. 

§  324.  In  Arkansas  it  is  held,  that  the  sureties  may  be  sued 
without  issuing  execution  against  the  principal.  It  is  suffi- 
cient to  aver  the  judgment  against  him,  and  its  non-payment.^ 

§  325.  Where  there  are  several  defendants,  and  the  obligation 
of  the  bond  is  for  the  payment  of  any  judgment  recovered 
against  them^  it  would  seem  that  the  sureties  could  not  be  made 
liable  for  a  judgment  recovered  against  them,  or  a  part  of  them, 
joined  with  a  new  defendant,  introduced  after  the  execution  of 
the  bond ;  and  it  might  be  doubtful  whether  they  could  be 
charged  for  a  judgment  recovered  against  only  a  part  of  the  de- 
fendants, where  the  defendants  remained  the  same.  But  where 
the  obligation  is  to  pay  such  judgment  as  the  plaintiff  may 
recover  in  the  suit  in  which  the  bond  is  given,  and  on  the  trial 
he  recovers  only  against  a  part  of  several  defendants,  and  fails 
to  recover  against  the  rest,  the  sureties  are  bound  for  that  judg- 
ment ;  2  but  if,  by  the  plaintiff's  act,  without  the  assent  of  the 
sureties,  a  change  is  made  in  the  defendants  against  whom  judg- 
ment is  obtained,  either  by  discontinuing  as  to  some,  and  the 
bringing  in  of  others,^  or  b}^  discontinuing  as  to  some  and  taking 
judgment  against  the  rest,*  the  obligation  of  the  sureties  is  dis- 
charged. 

§  325  a.  On  the  principle  governing  in  the  cases  cited  in  the 
preceding  section,  a  change  in  the  plaintiffs,  without  the  con- 
sent of  the  sureties  in  the  bond,  will  discharge  the  liability  of 
the  latter.  Thus,  where  a  bond  was  given  in  an  action  in  favor 
of  A.  as  surviving  partner,  and  B.  as  administrator  of  the  de- 
ceased partner,  and  afterwards  the  suit  was  discontinued  as  to 
the  latter,  and  an  amended  complaint  in  favor  of  the  former  alone 
was  filed,  under  which  a  judgment  was  rendered  in  his  favor 
against  tlie  defendant ;  it  was  held,  that  the  change  in  the  plain- 
tiffs discharged  the  obligation  of  the  bond.^ 

§  326.  In  Louisiana,  a  case  arose,  not  strictly  of  the  nature  of 
those  we  are  now  considering,  but  bearing  such  resemblance  to 

1  Lincoln  v.  Beebe,  11  Arkansas,  697  ;  *  Andre  v.  Fitzhugh,  18  Michigan,  93; 

Chrisman  v.  Rogers,  80  Ibid.  351.  Harris  v.  Taylor,  3  Sneed,  636. 

^  Leonard  v.  Speidel,  104  JNlass.  356.  *  Quillen  v.  Arnold,  12  Nevada,  234, 

3  Tucker  v.  White,  5  Allen,  322;  Rich- 
ards V.  Storer,  114  Mass.  101. 
[284] 


CHAP.  Xin.]  BAIL   AND   DELIVERY   BONDS.  §  327 

them  as  to  be  properly  noticeable  liere.  A  steamboat,  owned  by 
several  persons,  was  attached  for  the  debt  of  one  of  the  owners. 
The  other  owners,  to  relieve  the  boat  from  the  attachment,  came 
forward  and  filed  their  claim  for  the  three-fourths  of  the  vessel, 
offering  at  the  same  time  to  give  security  to  account  for  such  part 
as  should  be  found  to  belong  to  the  defendant  upon  a  final  ad- 
justment of  their  respective  claims  and  accounts,  upon  a  due  ap- 
praisement and  sale  of  the  interest  and  share  of  the  defendant ; 
and  the  court  ordered  the  boat  to  be  delivered  to  them,  on  their 
executing  bond,  with  security,  "  to  abide  the  judgment  of  the 
court  in  the  premises."  Judgment  was  rendered  against  the  de- 
fendant, only  a  part  of  which  was  satisfied  out  of  the  proceeds  of 
the  sale  of  his  share  in  the  boat,  and  the  plaintiff  sued  the  parties 
to  the  bond  to  recover  the  balance.  But  the  court  decided,  that 
the  bond  must  be  understood  in  relation  to  their  obligation  to  ac- 
count for  the  share  of  their  co-proprietor ;  and  that,  should  it 
remain  doubtful,  from  the  manner  in  which  the  order  of  the 
court  and  the  bond  were  worded,  whether  the  obligors  intended 
any  thing  more  than  making  themselves  responsible  for  the  share 
of  the  defendant,  justice  commanded  to  put  upon  the  bond  the 
most  equitable  construction,  and  to  reject  an  interpretation  which 
would  tend  to  make  them  pay  the  defendant's  debt,  not  only  out 
of  his  share,  but  out  of  their  own.^ 

§  327.  II.  Delivery  Bonds.  This  description  of  instrument  is 
variously  styled  Delivery,  Forthcoming,  or  Replevy  Bond.^  It  is 
usually  conditioned  for  the  delivery  of  the  property  to  the 
officer,  either  to  satisfy  the  execution  which  the  plaintiff  may  ob- 
tain in  the  cause,  or  when  and  where  the  court  may  direct. 
Sometimes  the  alternative  is  embraced,  of  the  delivery  of  the 
property  or  the  satisfaction  of  the  judgment  recovered  in  the  ac- 

1  Nancarrow  v.  Young,  6  Martin,  662.  the  nature  of  the  stipulations  entered  into 

2  In  McRae  v.  McLean,  3  Porter,  138,  in  the  bond,  than  upon  the  particular 
Hitchcock,  J.,  said  in  delivering  the  circumstances  which  may  attend  the  case, 
opinion  of  the  court :  "  The  term  repJevy,  All  our  injunction  and  writ  of  error  bonds 
in  its  general  sense,  includes  every  return  are  replevy  bonds  ;  yet  there  is  no  lien 
of  property  levied  on,  for  whatever  cause,  retained  on  the  property  attached,  the 
and  under  whatever  conditions  the  same  conditions  being  to  pay  and  satisfy  the 
may  be  subject  to,  whether  the  lien  is  judgment  or  decree  of  the  court  whenever 
continued  or  discharged  ;  and  the  ques-  made." 


/ 


tion  of  lien  or  no  lien  depends  more  upon 


[285] 


§328 


BAIL   AND   DELIVERY   BONDS.  [CHAP.  XIII. 


^V-— ' 


t 


tion.     Such  a  bond  is  no  part  of  the  record  in  a  cause,  and  can- 
not be  looked  to,  to  exphiin  or  contradict  the  sheriff's  return.^ 

§  327  a.  Though  a  bond  of  this  description  be  given  where  not 
authorized  by  statute,  or  in  terms  variant  from  those  prescribed, 
yet  it  is  not  therefore  necessarily  invalid  ;  but  it  will  be  good  as 
a  common-law  bond,  where  it  does  not  contravene  public  policy, 
nor  violate  a  statute.^ 

§  327  b.  It  seems  that  this  bond  may  be  taken,  as  well  where 
the  attachment  is  served  only  by  garnishment,  as  where  tangible 
property  is  levied  on.  It  was  so  held  in  Iowa,  under  a  statute  in 
these  words:  "The  defendant  may  at  any  time  before  judgment 
discharge  the  property  attached,  or  any  part  thereof,  by  giving 
bond,  with  surety  to  be  approved  by  the  sheriff,  in  a  penalty  at 
least  double  the  value  of  the  property  sought  to  be  released,  con- 
ditioned that  such  property,  or  its  estimated  value,  shall  be  deliv- 
ered to  the  sheriff,  to  satisfy  any  judgment  which  may  be  obtained 
against  the  defendant  in  that  suit,  within  twenty  days  after  the 
rendition  thereof."  ^ 


§  328.  No  set  form  of  words  is  necessary  to  make  a  valid  bond 
of  this  description.  T'u^^^lj^ipi^^  TI'VrT'fi^  ''^'  y^'^f^"K  ^^  givftUj-^i 
the  nature  of  a  condition  to  a  penal  j^iu^wiAmmgfi  no  bond  pre- 
ceded the  condition,  it  was  held  to  be  sufficieB*^n  the  following 
grounds :  "  It  states  what  act,  if  performed,  shall  have  the  effect 
of  rendering  the  supposed. bond  void.  It  implies  an  agreement 
on  the  part  of  the  obligors  for  the  performance  of  that  act.  It 
in  effect  stipulates  that  the  property  attached  shall  be  forthcom- 
ing when  ordered  by  the  court  to  be  returned  to  its  custody.  It 
shows  that  a  duty  had  devolved  on  the  persons  executing  the  in- 
strument, and  imports  an  undertaking  for  the  performance  of 
that  duty.  Although  it  is  unskilfully  drawn,  and  has  omitted  an 
essential  part  of  all  penal  obligations,  yet  we  think  an  action  of 
covenant  can  be  maintained  upon  it.  Any  other  construction 
would  violate  the  obvious  intention  and  understanding  of  the 
parties. 


4 


1  Kirksey  v.  Bates,  1  Alabama,  303.  Waters   v.  Riley,  2   Harris  &  Gill,  305 ; 

2  Shcppard  V.  Collins,  12  Iowa,  570.  Johnson  v.  Weatherwax,  9  Kansas,  75. 
See  Morse  v.  Hodsden,  5  Mass.  314;  ^  Wood wartl  y.  Adams,  9  Iowa,  474. 
Barnes   v.   Webster,   16   Missouri,    258 ;  *  Yocum  v.  Barnes,  8  B.  Monroe,  496. 

[286] 


CHAP.  XIII.]  BAIL   AND   DELIVERY   BONDS.  §  331 

§  329.  The  addition  to  the  bond  of  terms  not  required  by  law- 
will  not  vitiate  it,  nor  bar  the  prescribed  remedies  on  it.  Thus, 
where  the  statute  required  a  bond  "  conditioned  that  the  property- 
shall  be  forthcoming  to  answer  the  judgment  that  may  be  ren- 
dered in  the  suit ; "  and  the  bond  given,  after  reciting  the  attach- 
ment, and  that  the  obligors  claimed  to  be  the  owners  of  the 
property  attached,  was  conditioned  that  "  if  the  obligors  should 
fail  to  substantiate  their  claim  and  should  render  up  and  have 
forthcoming  the  property,"  &c. ;  it  was  held,  that  the  addition, 
"  if  the  obligors  should  fail  to  substantiate  their  claim,"  did  not 
affect  the  character  of  the  bond,  and  that  it  might  be  proceeded 
on  in  the  same  manner  as  if  that  addition  had  not  been  made.^ 

§  330.  This  bond  differs  from  the  contract  of  bailment  of  at- 
tached property,  prevalent  in  New  England  and  New  York,  to 
be  treated  of  in  a  subsequent  chapter,  —  1.  In  deriving  its  exist- 
ence from  statute,  and  not  from  practice  ;  2.  In  being  a  specialty, 
instead  of  a  simple  contract ;  3.  In  the  officer  being  under  legal 
obligation  to  release  the  property  from  actual  custody,  upon  suf- 
ficient security  being  given ;  4.  In  discharging  the  officer  from 
liability  for  the  property,  at  least  unless  he  were  guilty  of  impro- 
priety in  taking  insufficient  security  ;  5.  In  being  recognized  and 
proceeded  upon  in  the  courts  as  a  part  of  the  cause ;  and  6.  In 
being  a  contract  which  the  plaintiff  may  enforce  for  the  satisfac- 
tion of  his  judgment. 

§  331.  It  differs,  too,  from  a  bail-bond,  in  that  it  does  not  dis- 
charge the  lien  of  the  attachment ;  since  the  very  object  of  the 
bond  is  to  insure  the  safe  keeping  and  faithful  return  of  the 
property  to  the  officer,  if  its  return  should  be  required. ^  It  fol^ 
lows,  therefore,  that  after  property  is  thus  bonded,  it  cannot  be 
seized  under  another  attachment,  or  under  a  junior  execution, 
either  against  the  attachment  debtor,  or  against  a  third  person 
claiming  it  adversely  to  the  debtor  and  the  creditor  ;  for  to  hold 
otherwise  would  put  it  in  the  power  of  a  stranger  to  the  atcach- 

1  Purcell  V.  Steele,  12  Illinois,  93;  Missouri,  411;  Jones  v.  Jones,  38  Ibid. 
Sheppard  y.  Collins,  12  Iowa,  570.  429;    People  v.   Cameron,  7    Illinois   (2 

2  Gray  v.  Perkins,  12  Smedes  &  Mar-  Oilman),  468;  Gass  i'.  Williams,  4(i  Indi- 
sliall,  022;  McUae  v.  McLean,  3  Porter,  ana,  2-33  ;  Hoyd  y.  Buckins^liam,  10  llum- 
138  ;  Hives  v.  Wilborne,  6  Alabama,  45  ;  phreys,  434.  Sed  contra,  Schuyler  v.  Syl- 
Kirk  y.  Morris,  40  Ibid.  225 ;  Woolfolk  y.  vester,  4  Dutclier,  487;  Austin  v.  Bur- 
Ligram,  53  Ibid.  11 ;  Evans  v.  King,  7  gett,  10  Iowa,  302. 

[287] 


§333  a 


BAIL   AND   DELIVERY   BONDS.  [CHAP.  XIII. 


ment  suit,  by  a  levy  and  sale,  to  cause  a  forfeiture  of  the  condition 
of  the  bond.i  And  this,  too,  though  the  party  giving  the  bond 
take  the  property  into  another  State  ;  for  he  is  considered  to 
have  a  qualified  property  in  the  thing,  which  the  courts  of  every 
State  must  respect,  wherever  acquired.^ 

§  332.  By  executing  such  a  bond,  the  defendant  is  held  to 
have  acknowledged  notice  of  the  suit,  and  to  be  bound  to  enter 
an  a])pearance,  or  be  liable  to  be  proceeded  against  as  in  case  of 
personal  service  of  process  ;  ^  and  the  execution  of  the  bond  is 
sufficient  presumptive  evidence  that  the  property  was  found  by 
the  sheriff  in  the  possession  of  the  defendant.*  And  when,  as  is 
in  some  States  authorized,  a  person  not  a  party  to  the  suit  re- 
plevies the  property,  he  by  that  act  introduces  himself  to  the 
suit,  and  becomes,  though  not  a  technical  party,  yet  a  party  to 
the  proceedings ;  and  being  in  the  possession  of  property  which 
is  in  the  custody  of  the  law,  he  is  within  the  legitimate  reach  of 
proper  action,  by  the  court  in  which  the  suit  is  pending,  in  regard 
to  the  property.^  But  the  giving  of  such  a  bond  is  not  an  ac- 
knoAvledgment  that  the  writ  was  rightfully  issued.^ 

§  333.  This  bond  cannot  be  executed,  so  as  to  constitute  an 
effective  and  reliable  security  to  the  officer  or  the  plaintiff,  by 
any  party  not  thereto  authorized  by  law.  If  executed  by  one 
not  so  authorized,  it  will  not  be  sustained,  either  as  a  statutory 
or  common-law  bond." 


§  333  a.  The  execution  of  a  bond  of  this  description,  by  a 
person  other  than  the  defendant,  is  authorized  in  some  States. 
Where  so  executed,  what  is  the  relation  of  the  party  executing  it 


1  Rives  V.  Wilborne,  6  Alabama,  45 ; 
Kane  v.  Pilcher,  7  B.  Monroe,  651.  In 
Jones  V.  Peasley,  3  G.  Greene,  53,  it  was 
held  by  the  Supreme  Court  of  Iowa,  that 
a  bond  conditioned  "  that  the  attached 
property,  or  its  appraised  value,  shall  be 
forthcoming  to  answer  the  judgment  of 
the  court,"  discharges  the  property  from 
the  lien  of  the  attachment,  and  leaves  it 
subject  to  a  subsequent  attachment  for 
the  defendant's  debts,  and  that  the  obli- 
gors cannot  defend  against  tlie  bond,  be- 
cause the  property  was  subsequently 
attached  by  other  creditors. 
[288] 


2  Gordon  v.  Johnston,  4  Louisiana, 
304. 

3  Wilkinson  v.  Patterson,  6  Howard 
(Mi.),  193;  Richard  i;.  Mooney,  39  Mis- 
sissippi, 3-57 ;  Blyler  v.  Kline,  64  Penn. 
State,  130. 

I  Hoshaw  V.  Gullett,  53  Missouri,  208. 

5  Kirk  V.  Morris,  40  Alabama,  225. 

6  Avet  V.  Albo,  21  Louisiana  Annual, 
349. 

■J  Cummins  v.  Gray,  5  Stewart  &  Por- 
ter, 397;  Sewall  v.  Franklin,  2  Porter, 
493. 


CHAP.  Xni.]  BAIL  AND   DELIVERY  BONDS.  §  335 

to  the  defendant?  This  question  came  up  in  Alabama,  under  a 
statute  authorizing  personal  property  taken  in  attachment  to  be 
replevied  by  the  defendant,  "  or,  in  his  absence,  by  a  stranger." 
The  word  "  stranger  "  was  considered  to  mean  a  person  not  a 
party  to  the  suit,  who  acts  for  the  benefit  of  the  defendant ;  find 
it  was  held,  that  in  providing  for  a  replevy  by  a  stranger,  it  was 
not  intended  to  restrict  or  impair  the  defendant's  right  as  to  the 
possession  of  the  property  when  replevied  ;  that  the  defendant 
has  the  right  to  demand  of  the  stranger  the  possession  of  it ;  that 
on  such  demand  being  made,  it  is  the  duty  of  the  stranger,  either 
to  restore  the  property  to  the  defendant,  or  to  return  it  to  the 
sheriff ;  and  that  his  bond  is  subject  to  such  rules  as  would  gov- 
ern it  if  made  by  the  defendant  himself.^  And  afterwards,  in 
the  same  State  and  under  the  same  statute,  where  trover  was 
brought  against  the  replevying  "  stranger,"  he  was  considered  as 
holding  under  the  defendant,  and  entitled  to  make  all  defences 
•which  the  defendant  could  have  made  if  he  had  been  sued.^ 

§  334.  Where  the  bond  calls  for  the  delivery  of  the  property 
at  a  specified  place,  no  demand  is  necessary.^  When  the  prop- 
erty is  to  be  delivered  "  when  and  where  the  court  shall  direct," 
an  order  of  court  for  its  delivery  is  necessary  to  render  the  obli- 
gors liable.  The  judgment  of  the  court  against  the  defendant 
in  the  attachment  suit,  and  an  execution  issued  to  the  sheriff,  do 
not  constitute  an  order  to  the  obligors  to  deliver  the  property  at 
a  given  time  and  place.* 

Where  the  bond  is  for"  the  delivery  of  the  property  within  a 
stipulated  time  after  the  rendition  of  a  judgment  in  favor  of  the 
plaintiff  in  the  attachment  suit,  it  is  not  necessary,  to  sustain  an 
action  on  the  bond,  that  an  order  be  made  that  the  judgment 
shall  be  a  lien  on  the  attached  property,  or  directing  the  sale  of 
the  property.  The  right  of  action  is  complete  upon  the  failure 
to  deliver  the  property  within  the  stipulated  time.^ 

§  335.  The  surety  in  any  such  bond  may  exonerate  himself 
therefrom,  by  delivering  the  property  to  the  officer,  at  any  time 
before  judgment  is  rendered  against  him  on  the  bond.^     This  de- 

1  Kirk  V.  Morris,  40  Alabama,  225.  5  Waynant  v.  Dodson,  12  Iowa,  22. 

2  Morris  v.  Hall,  41  Alabama,  510.  6  Reagan  v.  Kitchen,   8    Martin,  418  ; 

3  Mitcliell  ?;.  Merrill,  2  Blackford,  87.  Hansford  y.  Perrin,  6  B.  Monroe,    595; 
*  Brotherton  v.  Thomson,  11  Missouri,  Kirk  v.  Morris,  40  Alabama,  225. 

94. 

19  [289] 


§  336  BAIL   AND  DELIVERY  BONDS.  [CHAP.  XIII. 

lively  must  be  an  actual  one,  —  that  is,  the  property  must  be 
brought,  and  pointed  out,  and  offered  to  the  officer.  Therefore, 
where  a  forthcoming  bond  was  given  for  a  slave,  and  the  prin- 
cipal, on  the  day  the  slave  was  to  be  delivered,  met  the  officer 
cro%sing  the  street  rapidly,  and  said  to  him,  "  Here  is  the  boy  ;  I 
have  brought  him  to  release  J.  on  that  bond ; "  and  the  officer 
replied,  "  Very  well ;  "  but  the  slave  was  not  pointed  out,  and 
the  officer  did  not  see  him  ;  it  was  held  to  be  no  proper  delivery .^ 

§  335  a.  Where  the  terms  of  the  bond  are  for  the  delivery  of 
the  property  to  the  officer  on  demand,  and  the  attachment  de- 
fendant has  removed  the  property  out  of  the  jurisdiction  of  the 
court,  no  demand  is  necessary .^ 

§  336.  The  signers  of  such  a  bond  cannot  object  that  it  is  not 
their  deed,  because  it  was  written  over  their  signatures  delivered 
to  the  officer  in  blank,  instead  of  their  signatures  being  affixed 
after  the  instrument  was  written.  In  such  case  the  officer  acts 
as  the  agent  of  the  obligors  in  filling  up  the  writing,  and  may 
prove  his  agency ;  and  if  he  be  dead,  his  declarations  in  relation 
to  it  may  be  given  in  evidence,  as  part  of  the  res  gestcefi  In  the 
case  in  which  this  was  decided,  all  the  parties  to  the  paper  wrote 
their  names  upon  it,  with  the  intention  that  it  should  be  filled 
up  as  a  forthcoming  bond,  and  delivered  it  to  the  officer  for  the 
purpose  of  being  so  filled  up. 

But  where  the  paper  is  signed  by  a  surety  with  an  understand- 
ing that  others  are  to  sign  it  with  him,  and  it  is  delivered  with- 
out their  signatures  being  obtained,  the  surety  will  not  be  bound. 
This  was  so  held  in  Louisiana,  where  a  surety  signed  a  bond 
in  which  the  names  of  three  principals  were  written,  only  one  of 
whom  signed  it ;  *  and  in  Mississippi,  where  the  surety  signed, 
Tinder  a  representation  that  two  others  would  become  cosureties 
with  him,  and  the  bond  was  delivered  without  their  signatures 
having  been  obtained.^ 

Where  the  statute  requires  the  bond  to  be  with  sureties,  and 
one  is  given  in  which  the  obligors  are  named  as  principals,  and 

1  Pogue  V.  Joyner,  7  Arkansas,  462.  Mass.  591 ;  Wood  v.  Washburn,  2  Pick. 

2  Driggs  V.  Harrington,  2  Montana,  30.  24. 

3  Yocum  V.  Barnes,  8  B.  Monroe,  496.  ^  Sessions  v.  Jones,  6  Howard  (Mi.), 
*  Clements  v.   Cassilly,  4    Louisiana  123.     See  Crawford  v.  Foster,  6  Georgia, 

Annual,  380.     See  Bean  v.  Parker,   17     202. 
[290] 


CHAP.  XIII.]  BAIL   AND   DELIVERY  BONDS. 


339 


no  one  as  surety  ;  the  obligors  cannot  object  to  the  validity  of 
the  bond  for  want  of  sureties.^ 

§  336  a.  In  Texas  it  is  held,  that  the  obligation  of  the  sure- 
ties in  a  forthcoming  bond  is  upon  two  conditions:  1.  That  the 
proceeding  in  attachment  was  legal  and  proper  ;  and  2.  That  the 
property  levied  on  was  subject  to  attachment ;  and  that  there- 
fore, to  relieve  themselves  from  liability,  they  may  move  to  quash 
the  attachment.^ 

§  337.  The  seizure  of  property  under  attachment,  upon  which 
the  party  having  it  in  possession  has  a  lien,  cannot  devest  the 
lien.  And  if  such  party  release  it  by  giving  bond,  it  seems  he 
will  be  responsible  on  the  bond  for  no  more  than  the  balance 
which  may  remain  in  his  hands  after  paying  himself  the  amount 
due  him. 3 

§  338.  In  Kentucky,  under  their  practice  of  attachment  in 
chancery,  it  was  held,  that  suit  on  a  bond  for  the  forthcoming  of 
attached  property  was  prematurely  brought,  where  the  Chancel- 
lor had  not  disposed  of  the  case,  and  remitted  the  party  to  his 
remedy  on  the  bond.*  In  the  same  State  it  was  held,  in  relation 
to  such  a  bond,  that  the  surety  ought  not  to  be  proceeded  against 
alone,  where  the  principal  was  within  reach  of  the  process  of  the 
court.^  And  in  Louisiana,  the  surety  cannot  be  made  liable,  un- 
til restoration  of  the  property  or  payment  of  the  bond  has  been 
demanded  of  the  principal.^  But  it  is  not  necessary  that  a  de- 
mand upon  the  security,  or  notice  to  him  of  the  order  of  the 
court  for  the  delivery  of  the  property,  should  be  shown,  in  order 
to  sustain  a  proceeding  against  him  on  the  bond.'' 

§  339.  In  an  action  on  a  bond  of  this  description,  the  obligors 
cannot  complain  that  the  penalty  in  it  is  not  as  large  as  the  law 
required ;  ^  nor  can  they  question  the  validity  of  the  officer's  levy 
of  the  attachment ;  ^  nor  object  to  the  validity  of  the  affidavit  on 

'  Scanlan  v.  O'Brien,  21  Minnesota,  <*  Goodman  v.  Allen,  6  Louisiana  Au- 

434.  nual,  371. 

2  Burch  V.  Watts,  37  Texas,  135.  '  Weed  v.  Dills,  34  Missouri,  483. 

*  Canfield  v.  M'Lauglilin,  10  Martin,  ^  Jones  v.  M.  and  A.  Railroad  Co.,  5 
48.  Howard  (Mi.),  407. 

*  Hansford  v.  Perrin,  6  B.  Monroe,  ^  Scanlan  v.  O'Brien,  21  Minnesota, 
605.  434. 


^  Page  V.  Long,  4  B.  Monroe,  121. 


[291] 


§339 


BAIL  AND  DELIVERY  BONDS.  [CHAP.  XIII. 


which  the  writ  issued  ;  ^  nor  complain  of  mere  errors  in  the  action 
against  their  principal  .^  Nor  is  it  comj)etent  for  them  to  aver  that 
the  property  attached  was  not  the  defendant's,  but  belonged  to  a 
third  person,  who  took  it  into  his  possession,  whereby  they  were 
prevented  from  having  it  forthcoming  to  answer  the  judgment  of 
the  court.  They  are  estopped  by  the  bond  from  contesting  the 
defendant's  right  to  the  property.  They  undertake  to  have  it 
forthcoming,  and  it  is  their  duty  to  comply  with  their  obligation, 
and  leave  it  to  the  plaintiff  in  the  attachment  and  the  claimant  of 
the  property  to  litigate  their  rights ;  not  to  take  it  out  of  the  pos- 
session of  the  plaintiff,  and  put  it  into  that  of  an  adverse  claim- 
ant, and  thus  excuse  themselves  for  a  breach  of  their  covenant.^ 
Equally  are  the  parties  to  such  a  bond  estopped  from  denying  the 
admissions  made  in  the  condition  of  the  bond.  Therefore,  where 
a  bond  recited  the  issuing  of  an  attachment  and  its  levy  on  the 
property,  it  was  held,  that  the  obligors  could  not,  in  an  action  on 
the  instrument,  deny  that  an  attachment  had  issued  and  been 
levied.^  And  where  a  party  gave  bond  to  hold  attached  property 
or  its  proceeds  subject  to  the  judgment  of  the  court,  it  was  held, 
that  he  could  not  set  up  as  a  defence  against  the  bond,  that  the 
sheriff  to  whom  it  was  given  had  no  legal  or  equitable  interest  in 
the  property.^  And  where  the  condition  of  the  bond  was  the  de- 
livery of  the  attached  property  to  the  sheriff,  in  the  event  of  a 
judgment  being  rendered  against  the  defendant,  it  was  held,  that 
it  was  no  defence  to  a  surety  that  the  judgment  against  the  de- 


1  Goebel  v.  Stevenson,  35  Michigan, 
172. 

2  Atkinson  v.  Foxworth,  53  Missis- 
sippi, 733. 

3  Sartin  v.  Wier,  3  Stewart  &  Porter, 
421 ;  Gray  v.  MacLean,  17  Illinois,  404 ; 
Dorr  V.  Clark,  7  Michigan,  810 ;  Easton  v. 
Goodwin,  22  Minnesota  ,  426.  In  Iowa, 
where  such  a  defence  is  allowed  by  stat- 
ute, it  was  held  not  sufficient  to  aver  that 
the  property  was  not  the  defendant's ; 
but  the  plea  must  show  whose  it  was. 
Blatchley  v.  Adair,  5  Iowa,  545.  In  Ken- 
tucky, in  an  action  on  a  bond,  tlie  under- 
taking of  which  was,  "  tliat  the  defendant 
S.  shall  perform  the  judgment  of  the  court 
in  this  action,  or  that  the  undersigned  H, 
will  liave  the  seventy-five  hogs  attached 
in  this  action,  or  their  value,  S412,  forth- 
coming and  subject  to  the  order  of  the 

[292] 


court  for  the  satisfaction  of  such  judg- 
ment ; "  it  was  held,  that  the  owner  of 
property,  attached  in  an  action  against  a 
third  person,  who  gives  such  a  bond  in 
order  to  retain  his  possession,  is  not  thereby 
precluded  from  asserting  his  claim  to  tiie 
property,  or  disputing  the  validity  of  the 
attachment.  Schwein  v.  Sims,  2  Metcalfe 
(Ky.),  209.  See  Halbert  v.  McCulloch,  3 
Ibid.  456.  But  if  he  fails  to  assert  his 
claim  to  the  property  until,  by  judgment, 
it  is  subjected  to  the  attachment,  he  shall 
then  neither  be  heard  in  a  defence  to  the 
bond,  nor  on  a  suit  for  the  recovery  of 
the  money  or  the  property.  Miller  v. 
Desha,  3  Bush,  212. 

*  Crisman  v.  Matthews,  2  Illinois  (1 
Scammon),  148;  Price  v.  Kennedy,  16 
Louisiana  Annual,  78. 

5  Morgan  v.  Furst,  4  Martin,  n.  s.  116. 


CHAP.  XIII.]  BAIL  AND  DELIVERY  BONDS. 


341 


fendant  did  not  order  the  property  to  be  sold.^  Nor  in  such  cases 
is  it  any  defence  against  a  recovery  on  the  bond,  that,  after  its 
execution,  the  property  was  seized  under  process  of  court,  or 
otherwise,  and  taken  from  the  possession  of  the  obligor;  for  he 
could  protect  his  right  of  possession  by  replevying  it.^ 

§  340.  Where  statutory  provision  is  made  allowing  a  party 
other  than  the  defendant  to  retain  attached  property,  on  execut- 
ing a  forthcoming  bond  therefor,  if  such  party  claim  to  be  the 
owner  of  the  property,  he  must  nevertheless  return  it  to  the 
officer,  and  then  assert  his  claim.  He  cannot  set  up  his  owner- 
ship as  a  defence  to  an  action  on  the  bond.^ 

§  340  a.  When  the  defendant  releases  property  on  bond,  he 
undertakes  to  make  successful  defence  to  the  action,  and  if  he 
fail,  his  liability  upon  the  bond  becomes  irrevocably  fixed  by  the 
final  judgment.  So,  too,  with  a  third  party  who  gives  such  a 
bond  :  he  undertakes  to  justify  the  delivery  of  the  property  to 
himself,  and  to  make  that  justification  in  the  suit  to  which  he  has 
voluntarily  made  himself  a  party  :  he  assumes  that  he  has  the 
right  to  intervene  on  account  of  the  property ;  and  if  he  fail,  he 
becomes  responsible  on  his  bond,  and  cannot  be  permitted  to  liti- 
gate the  action  again  upon  other  grounds.* 

§  340  h.  A  delivery  bond  is  a  substitute  for  the  property  at- 
tached, only  with  regard  to  the  plaintiff.  A  third  party  claiming 
the  property  cannot,  in  reference  thereto,  maintain  an  action  on 
the  bond.° 

§  341.  If  the  obligors  in  the  bond  are  prevented  by  the  act  of 
God  from  delivering  the  property,  their  liability  is  discharged. 
Therefore,  where  the  bond  was  for  the  forthcoming  of  a  slave, 
who  died  before  the  parties  were  bound  to  deliver  him,  it  was  de- 
cided that  they  were  not  responsible.*^  This  rule,  however,  is  not 
of  universal  application,  but  the  obligor  may,  by  his  own  conduct, 

1  Guay  V.  Andrews,  8  Louisiana  An-  *  "Wright  v.  Oakey,  16  Louisiana  An- 
nual, 141.  nual,  125. 

2  Koberts  v.  Dunn,  71  Illinois,  46.  ^  Wright  v.  "White,  14  Louisiana  An- 

3  Braley  v.  Clark,  22  Alabama,  361;  nual,  583;  White  v.  Hawkins,  16  Ibid. 
Cooper   ;;.  Peck,  Ibid.  406;    Morgan  v.  25. 

Furst,  4  Martin,  n.  s.  116.  ^  Falls  v.  Weissinger,  11  Alabama,  801 ; 

Post,  §  385. 

[293] 


§  341  h  BAIL  AND   DELIVERY  BONDS.  [CHAP.  XUI. 

lose  the  benefit  of  it.  There  is  a  distinction  between  a  bond 
rightly  given,  to  retain  possession  until  the  litigation  be  ended, 
and  one  given  wrongfully  to  get  a  possession  to  which  the  party- 
is  not  legally  entitled.  A  bond  of  the  former  description  is  usually 
given  by  or  on  behalf  of  the  defendant,  and  does  the  plaintiff  no 
legal  injury.  One  of  the  latter  description  is,  where  a  third  party 
comes  into  the  case  as  claimant,  and  seeks  possession  of  the  prop- 
erty until  his  claim  is  adjudicated.  In  such  case,  if  his  claim  is 
rejected,  he  is  to  be  regarded  as  a  bailee  in  his  own  wrong,  liable 
for  all  accidents,  and  taking  all  the  hazards ;  this  being  con- 
sidered very  different  from  a  case  wherein  one  of  two  equally 
innocent  parties  must  suffer  by  an  inevitable  casualty.  There- 
fore, where  such  a  claimant  gave  such  a  bond  for  a  horse  that  was 
attached,  and  presented  his  claim  therefor,  and  the  court  found 
against  his  claim,  and  ordered  him  to  produce  the  horse  ;  and  he 
responded  that,  before  judgment,  and  without  his  fault,  but  by 
the  act  of  God,  the  horse  had  died  ;  he  was  nevertheless  held 
liable  upon  the  bond.^ 

§  341  a.  If  through  the  instrumentality  of  the  attachment  plain- 
tiff the  obligors  are  prevented  from  delivering  the  property,  no 
action  will  lie  on  the  bond.  Thus,  where  attached  property  was 
released  from  the  custody  of  the  officer,  upon  a  bond  being  exe- 
cuted to  him  for  that  purpose,  and  afterwards  an  execution  in 
favor  of  a  stranger  to  the  attachment  proceedings,  issued  after 
levy  of  the  attachment,  was  levied  upon  the  attached  property  by 
the  consent  and  direction  of  the  attachment  plaintiff,  and  the 
property  was  sold  under  the  execution  ;  it  was  held,  that  there 
could  be  no  recovery  on  the  bond.^ 

§  341  h.  The  dissolution  of  the  attachment  discharges  the 
obligation  of  the  sureties  in  a  delivery  bond.^  Thus  the  dis- 
charge of  the  principal  in  bankruptcy,  before  judgment  rendered 
against  him,  has  that  effect.^  And  so,  if  within  four  months  after 
the  levy  of  the  attachment  a  petition  in  bankruptcy  be  filed 
against  the  attachment  defendant,  and  he  be  adjudged  bankrupt.^ 

1  Dear  v.  Brannon,  4  Bush,  471.  Sed  n.  s.  1G3  ;  Gass  v.  Williams,  46  Indiana, 
contra,  Atkinson  v.  Foxworth,  53  Missis-     253. 

sippi,  741.  «  Payne  v.  Able,  7  Bush,  344. 

2  Jaeger  v.  Strolting,  80  Indiana,  341.  5  Kaiser  v.  Richardson,  5  Daly,  301. 

3  Bildersee  i".  Aden,  10  Abbott  Pract. 

[294] 


CHAP.  Xin.]  BAIL   AND  DELIVEEY  BONDS.  §  343 

And  so,  where  the  death  of  the  defendant  has  the  effect  of  dis- 
solving the  attachment.^ 

§  341  e.  If  the  fulfilment  of  the  obligation  of  a  delivery  bond 
be  made  by  law  impossible,  the  bond  cannot  be  enforced.  Thus, 
where  a  bond  was  given  for  the  forthcoming  of  slaves  which  had 
been  attached,  it  was  held,  that  it  could  not  be  enforced  afterr  the 
slaves  had  been  emancipated  by  the  thirteenth  amendment  to  the 
Constitution  of  the  United  States.^ 

§  342.  The  measure  of  recovery  on  a  delivery  bond  is  the  value 
of  the  property  secured  by  it,  not  exceeding  the  amount  of  the 
plaintiff's  recovery  in  the  attachment  suit.  If  the  value  be  stated 
in  the  bond,  it  will  be  conclusive  on  the  obligors  ;  if  not  stated,  it 
must  be  established  by  proof.  Where,  therefore,  the  bond  was  in 
double  the  amount  of  the  demand  in  the  attachment  suit,  it  was 
held  to  be  error,  in  the  absence  of  proof  of  value,  for  the  court  to 
instruct  the  jury,  that  they  should  assume  the  half  of  the  penalty 
of  the  bond  to  be  the  true  value  of  the  property.^  Where  the  law 
provided  that  judgment  should  not  be  entered  against  the  surety 
for  a  sum  greater  than  the  assessed  value  of  the  property,  it 
was  decided,  that  if  there  was  no  assessment  of  its  value,  there 
could  be  no  judgment  against  the  surety.^  If  the  property  was 
subject  to  a  prior  valid  lien,  and  the  surety  in  the  bond  allow  it 
to  be  taken  from  him  under  such  prior  lien,  his  obligation  will 
not  thereby  be  discharged  ;  but  only  nominal  damages  can  be  re- 
covered against  him,  unless  the  property  was  greater  than  the 
amount  of  the  lien ;  in  which  ease  the  excess  would  be  the  meas- 
ure of  damages.^ 

§  343.  If  one  joint  obligor  in  a  delivery  bond  be  compelled  to 
pay  the  whole  amount  of  a  judgment  recovered  on  the  bond,  he 
may  maintain  an  action  against  his  co-obligor  for  contribution.^ 

1  Upham  V.  Dodge,  11  Rhode  Island,  Moon  v.  Story,  2  B.  Monroe,  354;  Weed 
621.  V.  Dills,  34  Missouri,  483. 

'^  Young  V.  Pickens,   45    Mississippi,  *  Richard  v.  Mooney,  39  Mississippi, 

553.     See   Green  v.   Lanier,  5  Heiskell,     357  ;  Phillips  v.  Harvey,  50  Ibid.  489. 
602.  5  Dehler  v.  Held,  50  Illinois,  491. 

®  Collins  V.   Mitchell,   3    Florida,   4 ;  '^  Labeaume  v.  Sweeney,  17  Missouri, 

153. 

[295] 


§  344  BAILMENT   OF  ATTACHED  PEOPERTY.      [CHAP.  XIY. 


CHAPTER    XIV. 

BAILMENT   OF  ATTACHED   PROPERTY. 

§  344.  In  the  New  England  States  and  New  York,  a  practice 
exists,  which  allows  an  officer  who  has  attached  personal  property 
on  mesne  process,  to  dispense  with  his  own  actual  custody  there- 
of, by  delivering  it  to  some  other  person,  —  usually  a  friend  of 
the  defendant,  though  the  plaintiff  may  lawfully  become  the 
bailee,^  —  and  taking  from  him  a  writing,  acknowledging  the  re- 
ceipt, and  promising  to  redeliver  the  property  to  the  officer  on 
demand.  This  practice  has  not  its  authority  in  any  statutory 
provision;  but  is  nevertheless  in  constant  use  in.  those  States; 
and  though  not  regarded  as  one  to  which  the  officer  is  officially 
bound  to  conform,^  has  yet  become  so  well  settled,  and  is  so  far 
held  in  regard,  that  the  Superior  Court  of  New  Hampshire 
remarked,  that  "  there  are  cases  in  which  a  sheriff,  if  he  should 
refuse  to  deliver  goods  to  a  friend  of  the  debtor,  upon  an  offer  of 
good  security,  would  deserve  severe  censure."  ^  The  same  court 
said :  "  It  is  true  that  when  goods  are  attached  the  sheriff  may 
retain  them  in  his  own  custody  in  all  cases,  if  he  so  choose.  But 
it  would  often  subject  him  to  great  inconvenience  and  trouble  so 
to  retain  them.     In  many  cases,  the  interest  both  of  the  debtor 

1  Tomlinson  v.  Collins,  20  Conn.  364.  tion  to  this  practice,  said :  "  The  taking 

2  Davis  V.  Miller,  1  Vermont,  9;  of  a  receipt  for  property  attached  is  a 
Moulton  V.  Chadborne,  31  Maine,  152.  common  mode  of  perfecting  an  attach- 
In  Batchelder  v.  Frank,  49  Vermont,  90,  ment.  It  saves  expense  to  all  the  parties, 
the  court  said :  "  The  law  does  not  re-  relieves  the  officer  of  the  care  and  cus- 
quire  the  officer  to  take  a  receipt  for  tody  of  the  property,  and  gives  the  cred- 
property  attached.  .  .  .  Whether  the  itor  all  he  seeks  for  by  his  attachment, 
officer  will  or  will  not  take  a  receipt,  is  viz.,  security  for  his  debt.  It  is  at  once 
not  the  exercise  of  official  function,  but  so  convenient  and  so  safe  a  mode  of  se- 
is  determined  by  him  on  personal  reasons,  curing  all  the  purposes  of  an  attachment 
in  view  of  all  that  appertains  to  the  sub-  that  it  has  been  adopted  universally  in 
ject ;  and  those  reasons  are  not  amenable  practice ;  and  though  not  authorized  by 
to  judicial  inquiry  as  between  him  and  statute,  is  recognized  in  law  as  an  official 
the  party  wliose  receipt  he  declines  to  act  having  definite  and  well-settled  rights, 
take."  duties,  and  obligations."    Austin  v.  Bur- 

^  Runlett  V.  Bell,  5  New  Hamp.  433.     lingtou,  34  Vermont,  506. 
The  Supreme  Court  of  Vermont,  in  rela- 
[296] 


CHAP.  XIV.]     BAILMENT   OF  ATTACHED  PROPERTY.  §  345 

and  the  creditor  requires  that  they  should  be  delivered  to  some 
person,  who  will  agree  to  be  responsible  for  them.  And  it  is  a 
common  practice  so  to  deliver  them  ;  a  practice  which  is  not  only 
lawful,  but  in  a  high  degree  useful  and  convenient."  ^  In  Maine, 
the  consent  of  the  plaintiff  to  this  bailment  is  necessary  to  dis- 
charge the  officer  from  responsibility  to  him  for  the  property.  If 
the  goods  be  delivered  to  a  receiptor  without  the  plaintiffs  con- 
sent, the  officer  will  be  liable  to  him  at  all  events  for  them,  if 
they  are  needed  to  satisfy  an  execution  obtained  by  the  plain- 
tiff.2  But  it  was  also  held,  in  the  same  State,  that  if  an  attach- 
ment plaintiff  approve  the  ability  of  a  receiptor  for  attached 
property,  that  does  not  exonerate  the  officer  from  making  effort 
to  find  the  property  to  respond  to  execution,  or  from  the  duty  of 
bringing  a  suit  upon  the  receipt.^ 

§  345.  This  contract  of  bailment  does  not  seem  to  be  uniform 
in  its  terms,  either  throughout  the  States  in  which  it  is  resorted 
to,  or  in  any  one  of  theni,  but  varies  according  to  the  circum- 
stances of  the  case,  or  the  intent  of  the  parties.  Sometimes,  and 
most  frequently,  the  bailee  simply  acknowledges  to  have  received 
from  the  officer  certain  goods,  attached  by  the  latter  in  a  case 
named,  which  he  agrees  to  return  to  the  officer  on  demand. 
Sometimes  the  value  of  the  goods  is  stated ;  and  not  unusually 
the  contract  is  in  the  alternative,  either  to  return  the  goods,  or 

1  Runiett  v.  Bell,  5  New  Hamp.  433.  most  natural  form  of  such  a  writing. 
In  Phelps  V.  Gilchrist,  8  Foster,  266,  Various  circumstances,  which  might  be- 
Bell,  J.,  used  the  following  language  in  come  material  to  the  parties,  would  as 
reference  to  this  practice  :  "  The  practice  naturally  be  introduced,  as  their  utility 
of  delivering  property  attached  to  a  came  to  be  seen,  until  every  thing  sup- 
bailee  for  safe  keeping,  must  have  been  posed  to  be  otherwise  likely  to  be  an 
coeval  with  the  practice  of  making  such  occasion  of  dispute,  would  be  mentioned, 
attachments.  It  is,  in  its  nature,  a  sim-  .  .  .  Tliere  is  ordinarily,  however,  noth- 
ple  deposit,  a  delivery  of  the  property  to  ing  in  such  a  receipt  which  changes  the 
be  kept  by  the  depositary,  witliout  com-  duties  or  obligations  of  the  parties,  from 
pensation,  until  called  for  by  the  attacli-  what  they  would  be,  on  a  simple  deposit, 
ing  officer.  No  particular  agreement  was  without  any  writing  whatever.  Usually 
necessary,  and  no  writing  was  required,  the  sole  advantage  of  the  writing  is,  that 
The  convenience  and  safety,  perhaps  of  it  contains  evidence  of  facts  which,  in 
both  parties,  would  render  some  writing,  the  event  of  any  controversy,  may  be 
showing  the  facts,  necessary,  in  cases  disputed,  and  may  sometimes  be  difficult 
where  the  number  of  the  articles  attaclied  of  proof." 

was  considerable.    In  general,  a  simple  ^  Moulton  v.  Chadborne,   31    Maine, 

receipt,  admitting  that  the  articles  enu-  152;  Franklin  Bank  v.  Small,  24  Ibid, 

merated  had  been  delivered  by  the  officer  52. 

to  tlie  receiptor  for  safe  keeping,  and  to  '  Allen  v.  Doyle,  33  Maine,  420. 

be  returned,  on  request,  would  be  the 

[297] 


§  346  BAILMENT   OF  ATTACHED   PROPERTY.      [CHAP.  XIV. 

pay  the  debt  and  costs  in  the  ease.  In  such  case  the  receipt  is 
none  the  less  a  positive  contract  to  redeliver  the  goods ;  the  al- 
ternative embraced  in  it  does  not  authorize  the  bailee  to  refuse 
to  surrender  the  goods,  nor  can  it  in  any  sense  be  construed  as 
vesting  in  him  a  power  of  sale.^  In  such  case  the  bailee  cannot 
require  the  oificer  to  take  an  equal  quantity  of  goods  of  the  same 
kind  and  quality,  or  discharge  himself  by  paying  the  officer  the 
value  of  the  goods ;  but  he  must  return  the  identical  articles  de- 
livered to  him,  or  pay  the  debt.^  Occasionally,  too,  the  receipt 
gives  the  bailee  the  alternative  of  returning  the  goods,  or  indem- 
nifying the  officer  against  all  damages  he  may  sustain  in  conse- 
quence of  his  having  attached  the  property.  In  such  a  case, 
where  an  action  was  brought  on  the  receipt,  it  was  urged  at  bar 
that  the  receipt,  being  in  the  alternative,  gave  the  receiptor,  at 
his  election,  the  right  to  return  the  property  or  indemnify  the  of- 
ficer ;  and  that  if  he  did  not  return  the  property  on  demand,  the 
alternative  became  absolute,  and  no  action  would  accrue  on  the 
contract  till  the  officer  had  been  damnified.  But  the  court  said : 
"  This  is  not  a  sound  construction  of  the  contract,  and  cannot  be 
conformable  to  the  intent  of  the  parties.  The  officer  had  no 
power  to  make  any  disposition  of  the  property  otherwise  than 
for  safe  keeping ;  and  to  construe  this  contract,  in  effect,  as  a 
conditional  sale,  would  pervert  the  very  object  of  the  parties. 
The  only  effect  which  the  latter  clause  in  the  receipt  can  have  is 
to  measure  the  extent  of  the  receiptor's  liability,  and  is  no  more 
than  a  legal  result  of  a  non-delivery  of  the  property."^  But 
where  the  contract  of  the  receiptor  is  to  pay  the  officer  a  speci- 
fied sum,  or  redeliver  the  property  on  demand,  it  is  held,  in 
Maine,  that  the  receiptor  has  the  election,  to  pay  the  money  or 
deliver  the  property  ;  that  the  officer  must  be  considered  as  hav- 
ing abandoned  his  possession  ;  and  that  the  attachment  is  thereby 
dissolved.* 

§  346.  Usually  the  receipt  makes  specific  mention  of  the 
goods  attached ;  and  this  is  always  desirable,  but  not  necessary 
to  the  legality  of  the  contract.  Whatever  can,  by  just  implica- 
tion, be  construed  as  acknowledging  the  receipt  of  property,  to 

1  Sibley  v.  Story,  8  Vermont,  15.  3  Page  v.  Thrall,  11  Vermont,  230. 

2  Anthony  v.  Comstock,  1  Rhode  Is-  *  Waterhouse  v.  Bird,  37  Maine,  326; 
land,  454.                                                          Waterman  v.  Treat,  49  Ibid.  309. 

[298] 


CHAP.  XIV.]     BAILINIENT  OF  ATTACHED   PROPERTY.  §  349 

be  redelivered  to  meet  the  exigency  of  the  attachment,  will  be 
sufficient.  As,  for  instance,  a  paper  in  the  following  form,  "  Value 
received,  I  promise  to  pay  B.,  deputy  sheriff,  $-100  on  demand 
and  interest,  —  said  note  being  security  to  said"B.  for  a  writ  C. 
vs.  D.  which  is  this  day  sued,"  —  was  held  to  be  in  effect  an  ac- 
knowledgment of  property  to  that  amount  received  as  attached 
on  the  writ,  and  a  valid  receipt.^ 

§  347.  Over  this  contract  the  plaintiff  in  the  action  has  no 
control ;  but  it  is  taken  by  the  officer  for  his  own  security,  that 
he  may  be  enabled  to  discharge  the  responsibility  he  has  assumed 
in  his  official  capacity.  But  if,  after  the  plaintiff  has  obtained 
judgment  in  his  action,  the  officer  deliver  a  receipt  taken  therein 
for  goods,  to  the  plaintiff's  attorney,  to  be  prosecuted  for  the  plain- 
tiffs benefit,  this  is  an  equitable  assignment  of  it,  which  will  pre- 
clude the  officer  from  interfering  with  the  avails  of  the  receipt  when 
judgment  has  been  obtained  on  it,  though  obtained  in  his  name.^ 

§  348.  An  officer  having  attached  chattels,  becomes  liable  for 
them,  at  the  termination  of  the  suit,  either  to  the  plaintiff  or  the 
defendant ;  to  the  former,  if  he  obtain  judgment,  and  issue  exe- 
cution, and  take  the  necessary  steps  to  have  it  levied  pursuant  to 
the  attachment ;  to  the  latter,  if  the  attachment  be  dissolved,  by 
judgment  in  his  favor  or  otherwise.^  Under  such  circumstances 
it  is  manifest  that  a  bailment  of  the  property,  if  it  were  not 
recognized  as  a  legal  act  of  the  officer,  would  not  in  any  way 
affect  his  relations  to  the  plaintiff  and  defendant ;  and  conse- 
quently he  would  be  under  the  necessity,  either  of  retaining  the 
property  in  his  own  actual  custody,  or  of  assuming  upon  himself 
the  entire  responsibility  of  suffering  it  to  go  into  the  hands  of  a 
third  person.  But  we  have  seen  that  the  bailment,  wherever 
this  practice  prevails,  is  regarded  as  a  legal  act ;  and  it  must 
needs  be,  therefore,  that  questions  will  arise  as  to  the  rights,  du- 
ties, and  liabilities  of  all  the  parties.  These  we  will  now 
proceed   to   consider. 

§  349.  That  which  seems  to  lie  nearest  the  foundation  of  this 
subject  is  the  relation  which  is  established  by  the  contract  of 

1  Bruce  v.  Pettengill,  12  New  Hamp.  Jewett  v.  Dockray,  34  Ibid.  45 ;  Phillips 
341.  V.  Bridge,  11  Mass.  242. 

2  Clark    V.    Clougli,    3    Maine,    357  ;  3  Lawrence  v.  Rice,  12  Metcalf,  527. 

[299] 


§  351  BAILMENT  OF   ATTACHED  PKOPERTY.      [CHAP.  XIV.^ 

bailment  between  the  officer  and  the  bailee.  This  has  been  the 
subject  of  frequent  discussion,  and  the  conclusion  seems  to  have 
been  generally  arrived  at,  that  the  bailee  is  to  be  viewed  in  the 
light  of  a  servant  or  agent  of  the  officer.^  In  New  York  he  was 
formerly  regarded  as  a  mere  naked  bailee,  having  no  interest  or 
property  in  the  goods  ;  and  in  Massachusetts  such  is  the  doctrine 
now  ;  but  however  true  this  may  be  as  between  him  and  the  of- 
ficer, it  will  be  seen,  in  another  place,^  that  the  weight  of  reason 
and  authority  is  greatly  in  favor  of  his  being  considered  as  having 
rights  in  the  property,  as  against  third  persons,  which  will  enable 
him  to  maintain  his  possession  of  it.  All  questions,  however, 
arising  between  him  and  the  officer,  will  be  found  to  be  materially 
affected  by  their  mutual  relation  being  regarded  as  that  of  master 
and  servant,  or  principal  and  agent. 

§  350.  An  officer,  by  the  levy  of  an  attachment,  acquires  a 
special  property  in  the  goods  seized.^  As  long  as  the  attachment 
continues  in  force,  and  its  lien  upon  the  property  remains  undis- 
turbed, that  special  property  exists,  and  enables  the  officer  to 
maintain  his  rights  acquired  by  the  levy.  An  indispensable  ele- 
ment of  the  continued  existence  of  the  lien  is,  the  officer's  con- 
tinued possession  of  the  property,  actual  or  constructive,  that  is, 
personally  or  by  another.*  As  the  bailment  of  it  is,  for  the  time, 
a  surrender  of  his  personal  or  actual  possession,  what  is  the 
effect  of  the  bailment  on  the  lien  of  the  attachment  ? 

§  351.  In  Massachusetts,  it  was  once  held  to  be  very  clear, 
that  after  an  officer  had  delivered  attached  property  to  a  re- 
ceiptor, and  taken  his  receipt  therefor,  and  his  promise  to  rede- 
liver it  on  demand,  it  could  no  longer  be  considered  as  in  the 
constructive  possession  of  the  officer.^  But  this  view  is  wholly 
inconsistent  with  other  decisions  in  the  same  State,^  and  not  less 
with  the  doctrine  maintained  there  in  numerous  cases,  that  the 

1  Ludden   i-.   Leavitt,   9    Mass.   104 ;  v.    Hinman,  8  Wendell,  667  ;  Gilbert  v. 

Warren   v.   Leland,  Ibid.   265 ;  Bond   v.  Crandall,  34  Vermont,  188. 
Padelford,  13  Ibid.  394 ;  Commonwealth  '^  Post,  §  367. 

1-.  Morse,  14  Ibid.  217  ;  Brownell  v.  Man-  '  Ante,  §  290. 

chaster,  1  Pick.  232 ;  Small  v.  Hutchins,  *  Ante,  §  290. 

19   Maine,   255;  Eastman  v.  Avery,  23  5  Knap  u.  Sprague,  9  Mass.  258. 

Ibid.  248  ;  Barker  v.  Miller,  6  Johnston,  6  Bond  v.  Padelford,  13   Mass.   394 ; 

195  ;  Brown  v.  Cook,  9  Ibid.  361 ;  Dillen-  Baker  v.  Fuller,  21  Pick.  318;  Ludden  v. 

back  V.  Jerome,  7  Cowen,  294 ;  Mitchell  Leavitt,  9  Mass.  104. 
[300] 


CHAP.  XIV.]    BAILMENT   OF  ATTACHED  PROPEETY.  §  353 

special  property  of  the  officer  in  the  goods  continues  after  the 
bailment,  and  that  the  receiptor  is  the  mere  servant  of  the  officer, 
having  himself  no  rights  in  the  goods,  and  therefore  unable  even 
to  maintain  legal  remedies  for  the  disturbance  of  his  possession. 
Equally  is  it  opposed  to  the  current  of  authority  elsewhere.  In 
Vermont,  New  Hampshire,  and  Connecticut,  it  has  always  been 
considered  that  the  delivery  of  attached  property  to  a  receiptor, 
and  taking  his  receipt  therefor,  does  not  discharge  the  lien  of 
the  attachment,  or  devest  the  officer  of  his  custody  of,  or  special 
property  in,  the  goods.^ 

§  352.  In  Maine,  under  a  statute  which  declares  "  that  when 
hay  in  a  barn,  sheep,  horses,  or  neat  cattle  are  attached  on  mesne 
process,  at  the  suit  of  a  bond  fide  creditor,  and  are  suffered  by 
the  officer  making  such  attachment  to  remain  in  the  posses- 
sion of  the  debtor,  on  security  given  for  the  safe  keeping  or 
delivery  thereof  to  such  officer,  the  same  shall  not,  by  reason 
of  such  possession  of  the  debtor,  be  subject  to  a  second  attach- 
ment, to  the  prejudice  of  the  first  attachment ;  "  it  was  held, 
that  this  was  designed  to  preserve  and  continue  the  lien  on 
the  property  attached,  in  the  same  manner  as  though  it  had 
remained  in  the  exclusive  possession  of  the  officer;  that  in 
such  case  the  debtor  cannot  sell  the  property ;  and  that  even 
a  bond  fide  purchaser  of  it  without  notice  acquires  no  rights 
in  it.2 

§  353.  Since,  then,  the  officer's  special  property  is  not  lost  by 
the  bailment,  and  the  bailee  stands  in  the  position  of  his  servant, 
it  follows  that  the  officer,  —  where  no  time  is  stated  in  the  re- 
ceipt for  the  return  of  the  goods,  —  may,  at  any  time  while  his 
special  property  in  them  continues,  or  while  he  is  responsible  for 
them  to  any  party  in  the  suit,  or  to  the  owner  of  them,  retake 
them  into  his  actual  possession,  from  the  bailee,  or  from  the  de- 
fendant, if  the  bailee  shall  have  suffered  them  to  go  back  into 
his  possession :  ^  and  this,  as  well  where  the  bailment  is  the  act 

'  Pierson  v.  Hovey,  1  D.  Chipman,  51 ;  Page,  54  Ibid.  190 ;  Tomlinson  v.  Collins, 

Enos  V.  Brown,  Ibid.  280;  Beacli  v.  Ab-  20  Conn.  8G4. 

bott,  4  Vermont,  605  ;  Rood  v.  Scott,  6  ^  W'oodraan  v.  Trafton,  7  Maine,  178  ; 

Ibid.  263 ;  Sibley  v.  Story,  8  Ibid.  15 ;  Carr  v.  Farley,  12  Ibid.  328. 
Kelly  V.  Dexter,  15   Ibid.  310 ;  Whitney  •*  Pierson  v.  Hovey,  1  D.  Chipman,  51 ; 

V.  Farwell,  10  New  Hamp.  9 ;  Howe  v.  Enos  v.  Brown,  Ibid.  280 ;   Beach  v.  Ab- 

[301] 


§  35G        BAILMENT  OF  ATTACHED  PROPERTY.   [CHAP.  XIV. 

of  his  deputy,  and  the  receipt  is  taken  by  the  deputy  in  his  own  '• 
name,  as  where  the  contract  is  in  the  name  of  the  principah^ 
The  Supreme  Court  of  Maine  expressed  serious  doubts  whether 
the  officer  could  retake  the  property  without  the  consent  of  the 
debtor  or  receiptor ;  ^  but,  upon  both  principle  and  authority,  it 
is  difficult  to  perceive  why  it  may  not  be  done. 

§  354.  This  right,  where  there  is  but  one  attachment,  usually 
depends  on  the  officer's  responsibility  to  the  plaintiff;  that  is, 
upon  the  necessity  for  his  having  the  property  in  hand  to  satisfy 
the  plaintiff's  demand.  If,  by  the  dissolution  of  the  attachment, 
that  necessity  has  ceased  to  exist,  and  at  the  same  time  the  bailee 
has  suffered  the  property  to  go  back  into  the  defendant's  hands, 
the  officer,  not  being  any  longer  responsible  for  it  to  either  plain- 
tiff or  defendant,  cannot  demand  it  of  his  bailee.  But  if,  upon 
the  dissolution  of  the  attachment,  the  property  be  still  in  the 
bailee's  possession,  the  officer  being  bound  to  restore  it  to  the  de- 
fendant, or  to  the  owner,  may  demand  it  from  the  bailee  for  that 
purpose.^ 

§  355.  If,  while  the  property  is  still  in  the  bailee's  possession, 
the  same  officer  lay  a  second  attachment  on  it,  his  control  over  it 
is  not  terminated  by  the  dissolution  of  that  under  which  the  bail- 
ment was  created,  if  the  second  attachment  remains  in  force  ;  for 
by  the  second  attachment  he  becomes  responsible  for  the  prop- 
erty to  the  plaintiff  therein ;  and  the  bailee  is  responsible  to 
him.  That  this  should  be  so,  depends,  of  course,  on  the  legality 
of  a  second  attachment,  of  which  there  can  be  no  doubt.* 

§  356.  While  attached  property  remains  in  the  possession  of 
the  attaching  officer,  or  of  his  bailee,  no  other  officer  can  levy 

bott,  4  Vermont,  605  ;  Rood  v.  Scott,  5  Baker  v.  Warren,  6  Gray,  527  ;  Colwell  v. 

Ibid.  263;  Sibley  v.  Story,  8  Ibid.  15;  Richards,  9   Ibid.   374.    And    tlie   same 

Kelly  V.  Dexter,  15  Ibid.  310;  Briggs  v.  view  is  held  in  Maine.     Waterhouse  v. 

Mason,  31  Ibid.  433;  Odiorne  v.  Colley,  Bird,  37  Maine,  826;  Stanley  u.  Drink- 

2  New  Hamp.  66 ;  Whitney  v.  Farwell,  water,  43  Ibid.  468. 

10  Ibid.  9  ;  Bond  v.  Padeltbrd,  13  Mass.  '  Baker  v.  Fuller,  21  Pick.  318;  Davis 

394.     But  in  Massachusetts,  it  was  held  v.  ]\Iiller,  1  Vermont,  9. 

in  a  late  case,  that  a  delivery  of  the  at-  -  Weston  v.  Dorr,  25  Maine,  176. 

tached  goods  by  the  receiptor  to  the  de-  ^  Whittier   v.  Smith,   11   Mass.   211 ; 

fendant,  legally  operates  as  a  discharge  of  Webster  v.  Harper,  7  New  Hamp.  594. 

tlie  attachment,  and  a  termination  of  the  *  Ante,  §  269. 
attaching  oflEicer's  special  property  in  them. 
[302] 


CHAP.  XIV.]     BAILMENT   OF  ATTACHED   PKOPEETT.  §  357 

another  attachment  on  it.^  But  he  who  has  seized  property  un- 
der an  attachment,  so  long  as  he  has  either  actual  or  constructive 
possession  of  it,  may  attach  it  again,  at  the  suit  of  the  same  or 
another  plaintiff.  This  right  extends  over  property  in  the  hands 
of  a  receiptor,  as  well  as  that  in  the  oflficer's  immediate  custody. 
While  it  is  in  the  receiptor's  possession,  the  second  attachment 
may  be  made  by  the  same  officer,  without  an  actual  seizure,  by 
the  officer's  returning  that  he  has  attached  the  property,  and 
giving  the  receiptor  notice,  with  directions  to  hold  it  to  answer 
the  second  writ.  But  if  the  receiptor  has  permitted  the  prop- 
erty to  go  back  into  the  defendant's  hands,  a  second  attachment 
cannot  be  made  without  a  new  seizure.^  When  an  officer  lays  a 
second  attachment  on  goods  in  the  hands  of  a  bailee,  the  latter 
may  decline  to  hold  them  for  the  security  of  that  attachment, 
and  may  return  them  to  the  officer ;  ^  but  if  he  make  no  objec- 
tion to  holding  them,  his  liability  will  be  the  same  under  the  sec- 
ond as  under  the  first  attachment. 

§  357.  As  has  been  intimated,  it  is  very  usual  for  the  receiptor 
to  permit  the  property  to  remain  in  the  defendant's  hands.  Hence 
have  arisen  what  are  termed  nominal  attachments  ;  that  is,  where 
the  property  is  not  actually  seized,  or,  if  seized,  is  left,  at  the 
time,  in  the  defendant's  possession,  upon  some  friend  of  the  de- 
fendant giving,  in  either  case,  a  receipt  therefor.  Such  an  attach- 
ment is  so  far  valid  as  to  bind  the  officer  for  the  value  of  the 
property,  and  to  give  force  to  the  contract  between  him  and  the 
bailee  ;  but,  with  respect  to  strangers,  other  creditors,  or  pur- 
chasers without  notice,  it  is  wholly  inoperative.*  The  Supreme 
Court  of  Massachusetts  on  this  point  said  :  "  Such  transactions 
are  always  confidential ;  the  sheriff  takes  his  security  from  the 
friend  of  the  debtor ;  and  this  friend  is  secured  by,  or  relies 
upon,  the  debtor.  They  all  act  at  their  peril,  and  have  it  not  in 
their  power  to  affect  the  security  of  the  attaching  creditor,  or  by 
such  means  to  withhold  the  property  from  other  creditors."  ^ 
Therefore,  in  all  such  cases,  where  the  property  remains  in  the 

1  Watson  V.  Todd,  6  Mass.  271 ;  Vin-  CoUey,  2  New   Hamp.   G6 ;  WJiitney   v. 

ton  V.  Bradford,  13  Ibid.  114;  Thompson  Farwell,  10  Ibid.  9;  Tomlinson  v.  Collins, 

V.  Marsh,  14  Ibid.  2GU ;  Odiorne  v.  CoUey,  20  Conn.  364. 

2  New   Hamp.   66;  Sinclair   v.  Tarbox,  3  Whitney?;. Farwell,  10 New  Hamp.  9. 

Ibid.  5.  *  Bridge  v.  Wyman,  14  Mass.  100. 

•2  Knap  V.  Sprague,  9  Mass.  258 ;  Wliit-  »  Bridge   v.  Wyman,   14   Mass.  190 ; 

tier  V.  Smith,  11  Ibid.  211 ;  Odiorne  v.  Phillips  v.  Bridge,  11  Ibid.  242. 

[303] 


§360 


BAILMENT   OF  ATTACHED  PROPEKTY.     [CHAP.  XIV. 


debtor's  hands,  whether  because  never  removed,  or  because  re- 
turned after  a  removal,  though,  as  we  have  seen,  the  officer  may, 
at  any  time  durmg  the  existence  of  the  attachment,  retake  it 
from  the  defendant,  if  the  matter  be  between  him,  the  bailee,  and 
the  defendant  only,  yet  the  defendant  may  sell  the  property,^ 
or  it  may  be  attached  by  other  creditors.^  And  it  is  held  in 
Massachusetts,  that  a  delivery  of  the  attached  goods  by  the  re- 
ceiptor to  the  defendant  legally  operates  as  a  discharge  of  the 
attachment,  and  a  termination  of  the  attaching  officer's  special 
property  in  them.^ 

§  358.  It  is  not,  however,  every  possession  by  a  defendant  of 
his  property  after  an  attachment  and  bailment  of  it,  that  will 
authorize  a  second  attachment.  If  an  officer  or  his  bailee,  still 
retaining  his  possession,  bond  fide,  and  from  motives  of  humanity, 
suffer  the  defendant  to  use  attached  articles,  which  will  not  be 
injured  by  such  use,  the  attachment  is  not  thereby  dissolved.* 

§  359.  But  if  the  bailee  permits  the  defendant  to  hold  and  use 
the  property  as  owner,  the  attachment  is  regarded  as  dissolved, 
so  far  as  that  the  property  may  be  attached  by  another  officer 
who  has  no  knowledge  that  a  prior  attachment  is  still  subsisting.^ 
What  knowledge  of  such  fact  will  suffice  to  prevent  a  second 
attaching  officer  from  acquiring  a  lien  on  the  property  thus  found 
in  the  defendant's  hands,  may  be  a  question.  Merely  knowing 
the  fact  that  the  property  had  been  once  under  attachment  will 
not  be  sufficient ;  for  the  officer  might  well  presume  that  that 
attachment  had  been  settled  or  dissolved.  But  if  he  know  that 
the  attachment  and  bailment  still  subsist,  and  that  the  property 
is  in  the  hands  of  the  defendant  merely  for  his  temporary  con- 
venience, he  cannot  acquire  a  lien  by  attaching  it.^ 

§  360.  If  the  bailee  go  off  and  abandon  all  possession  and  cus- 
tody of  the  property,  and  it  is  attached  by  another  officer,^  or 


1  Denny  v.  Willard,  11  Pick.  519; 
Eobinson  v.  Mansfield,  13  Ibid.  139. 

2  Bridge  v.  Wyman,  14  Mass.  190 ; 
Dunklee  v.  Fales,  5  New  Hamp.  527 ;  Rob- 
inson V.  Mansfield,  13  Pick.  139. 

3  Baker  v.  Warren,  G  Gray,  527. 

*  Train  v.  Wellington,   12  Mass.  495; 
[304] 


Baldwin  v.  Jackson,  Ibid.  131 ;  Young  v. 
Walker,  12  New  Hamp.  502. 

5  Whitney  v.  Farwell,  10  New  Hamp. 
9 ;  Bicknell  v.  Hill,  33  Maine,  297. 

«  Young  V.  Walker,  12  New  Hamp. 
502. 

7  Sanderson  v.  Edwards,  16  Pick.  144. 


CHAP.  XIY.]      BAILMENT   OF   ATTACHED   PROPERTY.  §  362 

come  into  the  possession  of  an  adverse  claimant,^  the  lien  of  the 
first  attachment  is  lost. 

§  361.  An  important  question  arises  out  of  this  practice  of  bail- 
ment, as  to  the  liability  of  the  officer  for  the  fidelity  and  pecuniary 
ability  of  the  bailee.  It  seems  to  be  conceded,  that,  if  the  bailee  _ 
is  nominated  or  approved  by  the  plaintiff,  and  he  afterwards  fail 
to  deliver  the  property  when  required  to  meet  the  attachment, 
the  officer  cannot  be  held  responsible  for  it.^  All,  however,  that 
the  creditor,  by  his  consent  to  the  bailment,  is  supposed  to  agree 
to,  is  to  exonerate  the  officer  from  liability  for  losses  occasioned 
by  the  insolvency  or  want  of  fidelity  of  the  bailee  ;  but  not  for 
losses  occasioned  by  the  neglect  of  the  officer  to  enforce  his  own 
rights  and  remedies  against  his  bailee.^  But  if  the  bailee  be 
selected  by  the  officer,  and  afterwards  fail  to  deliver  the  property, 
and  the  value  of  it  cannot  be  made  out  of  him,  can  the  officer 
protect  himself  from  liability  for  the  value  of  the  property  ? 

§  362.  In  Massachusetts,  Morton,  J.,  said :  "  The  officer  who 
attaches  personal  property  is  bound  to  keep  it  in  safety,  so  that  it 
may  be  had  to  satisfy  the  execution  which  may  follow  the  attach- 
ment. This  duty  he  may  perform  himself,  or  by  the  agency  of 
others.  If  he  appoint  an  unfaithful,  or  intrust  it  with  an  irre- 
sponsible, bailee,  so  that  it  is  lost  through  the  negligence  or  infi- 
delity of  the  keeper,  or  the  insufficiency  of  the  receiptor,  he  will 
be  responsible  for  the  value  of  the  property."*  This  doctrine 
was  affirmed  by  Justice  Story,  who  said  that  if  goods  intrusted 
to  a  bailee  "  were  lost,  or  wasted,  or  the  bailee  should  become  in- 
solvent, the  officer  would  be  responsible  therefor  to  the  creditor."  ^ 
So,  in  Vermont,  where  a  bailee  sold  the  property,  and  converted 
the  proceeds  to  his  own  use,  it  was  held,  that  this  was  the  same 
as  a  conversion  by  the  officer,  and  made  the  latter  liable  for  the 
property,  without  a  previous  demand  of  it  from  him  being  neces- 
sary.^ And  in  the  same  State  the  officer  is  held  responsible  for 
the  fidelity  and  solvency  of  his  bailee,  the  latter  being  regarded 
as  his  mere  servant.^ 

1  Carrington   v.  Smith,  8  Pick.  419;  *  Donliam  v.  Wild,  19  Pick.  520;  Phil  - 

Boynton  V.  Warren, 'jy  iSIass.  172.  lips  v.  Bri(Ifj,e,  11   Mass.  242;  Cooper  v, 

■^  Donliam  ;;.  Wild,  V.)  Pick.  520  ;  -Jen-  INIowry,  16  Ibid.  6. 
ney  v.  Delesdernier,  20  Maine,  183;  Rice  ^  Pierce  v.  Strickland,  2  Story,  292. 

i;.  Wilkins,  21  Ibid.  558  ;  Farnhani  v.  Gil-  •>  Johnson  v.  Edson,  2  Aikens,  299. 

man,  24  Ibid.  250.  ''  Gilbert    v.   Crandall,    o4    Vermo  nt 

8  Pierce  v.  Strickland,  2  Story,  292.  188. 

20  [305] 


§  363  BAILMENT   OF   ATTACHED   PROPERTY.      [CHAP.  XIV. 

§  363.  On  this  point,  we  find  the  Superior  Court  of  New 
Ilcimpshire  taking  a  different  ground  from  that  taken  in  Massa- 
chusetts and  Vermont.  The  question  there  came  up,  in  refer- 
ence to  the  insolvency  of  the  bailee.  The  court  said :  "  To  what 
extent  is  an  officer  responsible  for  goods  by  him  attached  upon  an 
original  writ,  has  not  been  settled  in  any  adjudged  case,  which 
has  occurred  to  us.  He  is,  without  doubt,  to  be  considered  as  a 
bailee,  and  answerable  for  the  goods,  either  to  the  debtor  or  the 
creditor,  if  they  be  lost  by  his  neglect  or  fault. 

"Is  he  answerable  beyond  this?  We  are,  on  the  whole,  of 
opinion  that  he  is  not.  As  no  cases  directly  in  point  are  to  be 
found,  we  must  resort  to  the  rules  which  have  been  applied  in 
analogous  cases. 

"  It  seems  always  to  have  been  understood  as  settled  law,  that, 
when  a  sheriff  takes  bail  in  any  suit,  if  the  bail  so  taken  be  suf- 
ficient, in  all  appearance,  when  accepted  as  bail,  the  sheriff  will 
not  be  liable  for  their  insufficiency  in  the  end  to  satisfy  the  judg- 
ment which  the  plaintiff  may  recover.  And  if,  in  replevin,  the 
sheriff  take  persons  as  sureties  in  the  replevin  bond,  who  are  ap- 
parently sufficient,  he  will  not  be  responsible  for  their  sufficiency, 
unless  he  was  guilty  of  negligence  in  making  inquiries  as  to  their 
circumstances. 

"  There  seems  to  us  to  be  a  very  close  analogy  between  the 
cases  of  taking  bail  and  replevin  bonds,  and  the  case  of  delivering 
goods,  which  have  been  attached,  to  some  person  for  safe  keep- 
ing. It  is  true  that  when  goods  are  attached,  the  sheriff  may  re- 
tain them  in  his  own  custody,  in  all  cases,  if  he  so  choose.  But 
it  would  often  subject  him  to  great  inconvenience  and  trouble  so 
to  retain  them.  In  many  cases,  the  interest  of  both  the  debtor 
and  the  creditor  requires  that  they  should  be  delivered  to  some 
person,  who  will  agree  to  be  responsible  for  them.  And  it  is  a 
common  practice  so  to  deliver  them  ;  a  practice  which  is  not  only 
lawful,  but  in  a  high  degree  useful  and  convenient.  Indeed,  there 
are  cases  in  which  a  sheriff,  if  he  should  refuse  to  deliver  goods 
to  a  friend  of  the  debtor,  upon  an  offer  of  good  security,  would 
deserve  severe  censure. 

"  We  are,  therefore,  induced  to  hold,  that  if  a  sheriff  deliver 

goods,  which  he  has  attached,  to  persons  who  are  apparently  in 

good  circumstances,  and  such  as  prudent  men  would  have  thought 

it  safe  to  trust,  for  safe  keeping,  he  is  not  liable,  if  the  goods 

[306] 


CHAP.  XrV.]      BAILMENT   OF   ATTACHED   PROPERTY.  §  367 

be  lost  through  the  eventual  insolvency  of  the  persons  to  whom 
they  may  have  been  so  delivered."  ^  In  a  subsequent  case  the 
same  court  held,  that  the  officer  is  not  responsible  for  the  tortious 
acts  of  his  bailee,  committed  without  his  knowledge  or  consent.^ 

§  364.  Here,  then,  is  a  conflict  of  judicial  decisions,  between 
which  we  will  not  attempt  to  decide.  The  weight  of  authority 
appears  to  be  against  the  New  Hampshire  doctrine ;  but  the 
reasoning  upon  which  it  is  based  is  certainly  calculated  to  shake 
the  confidence  which  might  otherwise  be  felt  in  the  opposite 
opinion. 

§  365.  What  has  been  said  with  regard  to  the  liability  of  the 
officer  refers  to  his  relation  to  the  plaintiff.  He  is  also  liable  to 
the  defendant  for  a  return  of  the  property  to  him  in  the  event  of 
the  attachment  being  dissolved,  or  the  demand  upon  which  it  was 
issued  being  satisfied.  Where,  however,  the  bailment  takes  place 
with  the  consent  of  the  defendant,  the  officer  is  not  answerable 
to  him  for  the  property,  until  a  reasonable  time  for  recovering  it 
from  the  bailee  shall  have  elapsed,  after  the  defendant  has  become 
entitled  to  have  it  returned  to  him.^ 

§  366.  Having  thus  stated,  first,  the  general  propositions  bear- 
ing upon  this  contract,  and  then  the  rights  and  liabilities  of  the 
officer  in  relation  to  bailed  property,  we  will  now,  before  proceed- 
ing to  the  examination  of  his  remedies,  refer  to  the  rights  and 
duties  of  the  bailee. 

§  367.  What  rights  does  the  bailee  acquire,  by  the  bailment,  in 
and  over  the  attached  property  ?  In  Massachusetts,  he  has  always 
been  considered  a  mere  naked  bailee,  having  no  property  in  the 
goods,  and  unable  to  maintain  an  action  for  them,  if  taken  out  of 
his  custody  by  a  wrong-doer.  In  a  case  of  similar  character,  the 
court  there  once  held  difi"erently  ;  considering  that  a  naked  bailee, 
though  he  might  not  maintain  replevin,  —  since,  to  sustain  that 
action,  property  in  the  plaintiff,  either  general  or  special,  is  neces- 
sary,—  yet  might  bring  trover  or  trespass;*  but  in  every  case 

1  Runlett  V.  Bell,  5  New  Hamp.  433 ;  3  Bissell  v.  Huntington,  2  New  Ilamp. 

Howard  v.  Whittemore,  9  Ibid.  134 ;  Bruce     142. 
V.  Pettengill,  12  Ibid.  341.  *  Waterman  v.  Robinson,  5  Mass.  303. 

-  Barron  v.  Cobleigh,  11  New  Hamp, 
557. 

[307] 


5  368 


BAILMENT   OF   ATTACHED   PROPERTY.      [CHAP.  XIV. 


■\vheve  the  point  has  arisen  in  the  case  of  a  receiptor  of  attached 
property,  the  same  court  has  held  that  the  receiptor  could  main- 
tain no  action  at  all.^  The  same  doctrine  was  long  held  in  New 
York  ;  ^  but  has  finally,  after  an  extended  discussion  before  the 
Court  of  Errors  in  that  State,  been  discarded ;  and  it  is  now  held 
there,  that  the  receiptor  may  maintain  replevin.^  The  Superior 
Court  of  New  Hampshire,  at  an  early  day,  held,  that  for  the 
purpose  of  vindicating  his  possession  against  wrong-doers,  the 
receiptor  has  a  special  property  in  the  goods,  and  may  maintain 
trover  against  one  who  takes  them  from  him,*  In  Vermont,  it 
was  decided  that  the  bailee  has  a  possessory  interest  in  the  prop- 
erty, which  will  enable  him  to  maintain  trover  for  it  against  a 
wrong-doer  ;  that  in  order  to  maintain  the  action  it  is  not  neces- 
sary to  hold  that  he  has  property  in  the  goods  ;  and  that  his  pos- 
session and  responsibility  over  to  the  officer  furnish  sufficient  title 
and  just  right  for  him  to  recover.^  In  Connecticut  the  receiptor 
may  maintain  trespass  for  a  violation  of  his  possession.®  Justice 
Story,  in  noticing  the  Massachusetts  doctrine,  says :  "  It  deserves 
consideration,  whether  his  possession  would  not  be  a  sufficient 
title  against  a  mere  wrong-doer ;  and  whether  his  responsibility 
over  to  the  officer  does  not  furnish  a  just  right  for  him  to  main- 
tain an  action  for  injuries,  to  which  such  responsibility  attaches."  "^ 
And  Chancellor  Kent  says :  "  Though  the  bailee  has  no  property 
whatever  in  the  goods,  and  but  a  mere  naked  custody,  yet  the 
better  opinion  would  seem  to  be,  that  his  possession  is  a  sufficient 
ground  for  a  suit  against  a  wrong-doer."  ^  It  may,  therefore,  be 
considered  that  the  weight  of  authority  is  largely  against  the  doc- 
trine advanced  in  Massachusetts  ;  which  seems  alike  repugnant  to 
well-established  principles,  and  to  the  justice  due  to  bailees  in 
such  cases. 


§  368.    A  receiptor's  position  resembles  in  one  respect  that  of 
bail ;  in  that  he  may  at  any  time  while  liable  on  his  receipt  to  the 


1  Liulden  v.  Leavitt,  9  Mass.  104 ;  Per- 
ley  V.  Foster,  Ibid.  112 ;  Warren  v.  Leland, 
Ibid.  205;  WhiUier  v.  Smith,  11  Ibid. 
211 ;  Bond  v.  Padelfbrd,  13  Ibid.  394  ; 
Commonwealth  v.  Morse,  14  Ibid.  217 ; 
Brownell  v.  Manchester,  1  Pick.  232. 

'^  Dillenback  v.  Jerome,  7  Cowen,  294 ; 
Norton  v.  People,  8  Ibid.  137  ;  Mitchell  v. 
Hinman,  8  Wendell,  667. 
[308] 


3  Miller  v.  Adsit,  16  Wendell,  335. 

4  Poole  V.   Symonds,    1    New   Hamp. 
289  ;  Wliitney  v.  Farwell,  10  Ibid.  9. 

5  Thayer  v.  Hutchinson,  13  Vermont, 
504. 

6  Burrows  v.  Stoddard,  3  Conn.  IGO. 

7  Story  on  Bailments,  §  133. 

8  2  Kent's  Com.  568,  note  e. 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PROPERTY.  §  371 

officer,  retake  the  property  from  the  defendant's  possession,  and 
deliver  it  to  the  officer,  in  discharge  of  his  receipt.^ 

§  369.  Though  the  mere  fact  of  the  bailment  gives  the  receiptor 
no  power  of  sale  of  the  goods,^  yet  if  he  make  such  a  sale  with 
the  assent  of  the  debtor,  and  acting  as  his  agent,  it  will  have  the 
same  effect  as  if  the  property  had  been  restored  to  the  defendant, 
and  the  sale  had  been  made  by  him  ;  ^  in  which  case  we  have  seen 
that  the  sale  would  be  valid.*  A  sale  by  a  receiptor,  with  the 
assent  of  the  attaching  plaintiff,  has  the  effect  of  dissolving  the 
attachment.^ 

§  370.  The  duties  of  the  bailee  are  sufficiently  apparent  from 
what  has  been  stated.  He  is  bound  to  keep  the  property,  and  to 
return  it  on  demand  to  the  officer,  and  to  take  reasonable  care  of 
it  while  it  is  in  his  custody.  He  cannot  be  required  to  exercise 
more  than  ordinary  care.^  For  any  omission  of  duty  in  any  of 
these  particulars,  he  will  be  responsible  to  the  officer.  But  this 
obligation  to  return  the  property  to  the  officer  is  not  in  all  cases  ab- 
solute.' As  has  been  before  stated,^  it  depends  upon  the  officer's 
liability  for  the  property,  either  to  the  plaintiff,  the  defendant,  the 
owner  of  it,  or  a  subsequent  attaching  creditor,  who,  by  placing  a 
second  writ  in  the  hands  of  the  same  officer  who  seized  the  goods 
in  the  first  place,  has  succeeded  in  obtaining  a  valid  lien  on  the 
property.  If  the  officer  is  not  accountable  for  the  goods  to  any 
one,  he  cannot  make  the  bailee  accountable  to  him.^  When  we 
come  to  consider  the  bailee's  defences  against  an  action  by  the 
officer  on  the  receipt,  we  shall  see  more  particularly  what  facts 
discharge  his  liability. 

§  371.  The  remedies  of  an  officer  for  a  disturbance  of  his  pos- 
session of  attached  property  are  not  confined  to  his  retaking  the 
property;  for  that  would  frequently  be  impracticable.  As  his 
special  property  continues  as  long  as  the  attachment  exists,  he 

1  Bond  V.  Padelford,    13   Mass.  394 ;  ^  Story  on  Bailments,  §  132. 
Merrill  v.  Curtis,  18  Maine,  272.                          8  Ante,  §§  354,  355. 

2  Sibley  t-.  Story,  8  Vermont,  15.  9  In  Holt  v.  Burbank,  47  New  Ilamp. 

3  Clark  V.  Morse,  10  New  llamp.  236.       164,  tlie  Supreme   Court  of  New  Ilamp- 
*  Ante,  §  357;  Denny  r.  Willard,   11     shire  said:  "  No  special  contract  not  un- 

Pick.  Ol'J;  Robinson  y.  Mansfield,  13  Ibid,     der  seal  can  be  made  which  will  extend 

130.  the  receiptor's  liability  beyond  an  indem- 

5  Eldridge  v.  Lancy,  17  Pick.  352.  nity  to  the  officer;  -for  the  officer's  special 

^  Cross  V.  Brown,  41  New  Ilamp.  283.     property  depends  upon  his  liability  over." 

[309] 


§372 


BAILMENT   OP   ATTACHED   PROPERTY.      [CHAP.  XIV. 


may  maintain  trover,^  trespass,^  and  replevin,^  for  any  violation 
of  liis  possession  during  that  period.  And  this,  as  well  where 
the  property'  has  been  bailed,  as  where  it  remains  in  his  own 
hands ;  for,  though  he  have  not  the  actual  keeping  of  the  goods, 
yet  the  custody  of  the  bailee  being  that  of  liis  servant  or  agent, 
and  his  special  property  being  still  in  existence,  he  is  regarded 
as  having  the  lawful  possession,  so  as  to  enable  him  to  maintain 
an  action  for  it.*  Indeed,  in  Massachusetts,  the  officer,  and  not 
the  bailee,  must  sue  for  bailed  property  ;  ^  but,  as  we  have  just 
seen,  the  weight  of  authority  elsewhere  is  decidedly  against  that 


view. 


§  372.  Where  a  bailee  fails  to  redeliver  property  according  to 
the  terms  of  his  contract,  the  officer  may  retake  it,  if  accessible ; 
but  no  case  has  met  my  observation  holding  that  he  is  under  ob- 
ligation to  do  so ;  except  one  in  Maine,  where  it  was  held,  that 
the  plaintiff's  approval  of  the  receiptor's  ability  did  not  exonerate 
the  officer  from  making  effort  to  find  the  property  to  respond  to 
execution,  or  from  the  duty  of  bringing  a  suit  on  the  receipt.^ 
His  right  of  action  on  the  receipt  accrues  upon  his  demanding 
the  property  from  the  bailee,  and  the  failure  of  the  latter  to  de- 
liver it.^  In  cases  where  the  bailment  is  created  by  a  deputy,  his 
principal  may  claim  to  have  made  the  bailment  himself,  and  may 
sustain  an  action  in  his  own  name  upon  the  receipt;^  or  the 
deputy  may  sue  thereon  ;  '-^  but  it  is  not  in  virtue  of  his  office,  but 
of  the  personal  contract  between  him  and  the  bailee,  that  the 
deputy  is  enabled  to  maintain  the  action. ^^  If  the  attachment 
was  made  by  a  person  specially  authorized  to  serve  the  writ,  and 
a  receipt  given  to  him,  an  action  on  the  receipt  may  be  main- 
tained in  his  name,  after  demand  made  upon  the  receiptor,  by  an 
officer  holding  the  execution  in  the  case.^^     It  is  not  necessary,  in 


1  Ludden  v.  Leavitt,  9  Mass.  104 ; 
Badlam  v.  Tucker,  1  Pick.  389 ;  Lowry  v. 
Walker,  5  Vermont,  181 ;  Lathrop  v. 
Blake,  3  Foster,  46. 

2  Brownell  v.  Manchester,  1  Pick. 
232  ,•  Badlam  v.  Tucker,  Ibid.  389 ;  Walker 
V.  Foxcroft,  2  Maine,  270;  Strout  i-.  Brad- 
bury, 5  Ibid.  313  ;  Whitney  v.  Ladd,  10 
Vermont,  165. 

3  Perley  v.  Foster,  9  Mass.  112 ;  Gor- 
don V.  Jenney,  16  Ibid.  465. 

*  Brownell  v.  Manchester,  1  Pick.  232. 
[310] 


5  Ludden  v.  Leavitt,  9  Mass.  104. 

6  Allen  V.  Doyle,  33  Maine,  420. 

^  Page  V.  Thrall,  11  Vermont,  230; 
Scott  V.  Whittemore,  7  Foster,  309. 

8  Davis  V.  Miller,  1  Vermont,  9  ;  Baker 
V.  Fuller,  21  Pick.  318 ;  Smith  v.  Wad- 
leigh,  18  Maine,  95. 

9  Spencer  v.  Williams,  2  Vermont, 
209. 

^^  Hutchinson  v.  Parkhurst,  1  Aikens, 
258. 

"  Maxfield  v.  Scott,  17  Vermont,  634. 


CHAP.  XIV.]     BAILMENT  OF  ATTACHED   PROPERTY.  §  373 

order  to  the  officer's  maintaining  an  action  on  the  receipt,  that  he 
should  be  still  in  office  ;  but  if,  after  his  going  out  of  office,  the 
property  be  legally  demanded  of  him  by  another  officer,  so  as  to 
make  him  liable  for  it,  he  may  demand  it  of  the  bailee,  and  main- 
tain an  action  on  the  receipt.^ 

§  373.  As  in  other  cases  of  mere  deposit,  no  right  of  action  ac- 
crues to  the  bailor,  until  after  a  demand  made  upon  the  bailee,  and 
a  failure  by  him  to  return  the  goods ;  unless  there  has  been  a 
wrongful  conversion,  or  some  loss  by  gross  negligence  on  his 
part ;  ^  and  if  the  receiptor  shall  have  died,  there  must  be  a  de- 
mand upon  his  personal  representative  before  the  cause  of  action 
will  be  considered  complete  against  his  estate.^  The  necessity 
for  a  demand  is  not  dispensed  with  by  proving  the  receiptor's  in- 
ability to  redeliver ;  ^  but  in  such  case  the  necessity  for  a  demand 
at  any  particular  place  is  dispensed  with ;  it  may  be  made 
wherever  the  officer  finds  the  receiptor.^  The  bailee's  liability  is 
not  fixed  instantly  on  demand,  but  he  is  entitled  to  a  reasonable 
time  after  demand  to  deliver  the  goods,  and  an  action  will  not  lie 
on  the  receipt,  until  there  has  been  a  neglect,  after  reasonable 
time,  to  comply.^  If  the  bailee  has  suffered  the  property  to  go 
back  into  the  defendant's  possession,  no  demand  is  necessary.'^ 
And  it  was  held,  that  a  demand  was  not  necessary,  where  the 
tenor  of  the  receiptor's  obligation  was,  that  he  should  pay  a  sum 
of  money,  or  keep  the  property  safely,  and  redeliver  it  on 
demand ;  and,  if  no  demand  be  made,  that  he  should  redeliver  it 
within  thirty  days  after  rendition  of  judgment  in  the  suit,  at  a 
place  named,  and  notify  the  officer  of  the  delivery.^  It  is  not 
requisite  that  the  demand  be  made  by  the  officer  who  delivered 
the  property  to  the  bailee.  The  terms  of  the  receipt  are  to  be 
taken  with  reference  to  the  subject-matter,  and  only  import  that 
the  bailee  holds  the  property  in  subjection  to  the  attachment. 
Any  officer,  therefore,  holding  the  execution  in  the  case,  suf- 
ficiently represents  the  bailor  to  make  the  demand,  and  a  delivery 

% 

1  Bradbury  v.  Taylor,  8  Maine,  130.  "  Jameson  v.  Ware,  6  Vermont,  610 ; 

2  Story  on  Bailments,  §  107;  Bacon  v.     Gilmore  v.  McNeil,  46  Maine,  532. 
Thorp,  27  Conn.  251.  ^  Webster  v.  Coffin,  14  Mass.  106. 

»  Carpenter  v.  Snell,  37  Vermont,  2.55.  »  Sliaw  v.  Laughton,  20  Maine,  266  ; 

<  Bicknell  v.  Hill,  33  Maine,  297.  Humphreys  v.  Cobb,  22  Ibid.  380 ;  Went- 

*  Gilmore  v.  McNeil,  46  Maine,  532.         worth  v.  Leonard,  4  Cushing,  414  ;  Hods- 
kin  V.  Cox,  7  Ibid.  471. 

[311] 


§  374  BAILMENT   OF   ATTACHED   PROPERTY.      [CHAP.  XIV. 

to  such  officer  would  be  iu  effect  a  delivery  to  the  bailor.^  But  if 
another  than  the  attaching  officer  make  the  demand,  he  must 
make  known  his  authority  to  do  so,  or  the  demand  and  refusal 
will  not  be  considered  as  evidence  of  a  conversion.^  A  return 
on  the  execution  that  the  officer  had  demanded  of  the  receiptor 
a  delivery  of  the  property,  is  no  evidence  of  a  demand.^ 

§  374.  In  the  New  England  States,  an  attachment  continues 
in  force  from  the  time  of  the  levy  until  a  certain  period  —  in 
most,  thirty  days,  in  Connecticut,  sixty  days  —  after  judgment  in 
favor  of  the  plaintiff.  If,  within  the  specified  period  after  the 
judgment,  the  plaintiff  do  not  cause  execution  to  be  issued,  and 
levied  on  the  attached  property,  if  accessible,  or,  if  not  accessi- 
ble, have  it  demanded,  within  that  time,  of  the  officer  who 
attached  it,  by  the  officer  having  the  execution,  the  lien  of  the 
attachment  is  lost.'*  The  necessity  for  the  issue  of  the  execution 
within  the  prescribed  period  of  time  is  not  dispensed  with  by  the 
fact  that  the  attached  property  was  stolen  from  the  officer,  and 
that  he  so  returned  on  the  writ.  The  plaintiff  must  at  least 
show  that  he  had  entitled  himself  to  levy  on  the  property,  if  it 
had  been  faithfully  kept.^  If  the  execution  be,  within  that  time, 
placed  in  the  hands  of  the  officer  who  made  the  attachment,  he 
being  still  in  office,  that  will  be  sufficient  notice  to  him  that  the 
plaintiff  claims  to  have  the  attached  goods  applied  to  satisfy  the 
execution.*^  And  so  far  as  the  plaintiff's  rights  are  concerned, 
the  effect  is  the  same  if  the  execution  be  placed  in  the  hands  of 
the  officer  whose  deputy  made  the  attachment ;  for  the  law  re- 

i  Davis    V.    Miller,    1    Vermont,    9 ;  and  calls  for  a  delivery  of  the  property, 

Stewart  v.  Platts,  20  New  Hamp.  476 ;  without  making  known  the  authority  he 

Cross  V.  Brown,  41  Ibid.  283.  has   to   receive   it,   may  be  treated  as  a 

2  Walbridge  v.  Smith,  Brayton,  173.  person  without  authority.     The  duty  of 

In    Phelps    V.    Gilchrist,   8   Foster,   266,  making  known  his  authority  is  on  him 

Bell,  J.,   said  :  "  The   receiptor   is   not  who  assumes  to  make  a  claim  under  it. 

bound,  by  law,  or  by  his  contract,  to  de-  The  party  who  is  called  upon  is  under 

liver  the  property  to  any  deputy  sheriflF  no  duty  to  inquire  whether  he  has  au- 

or  other  officer  who  may  demand  it.     He  thority  or  not." 
is  not  bound  to  take  notice  of  the  author-  3  Bicknell  v.  Hill,  33  Maine,  297. 

ity  of  other  officers  to  have  possession  of  *  Howard    v.    Smith,    12    Pick.    202  ; 

it,  until  it  is  distinctly  made  known  to  Collins  v.  Smith,  16  Vermont,  9  ;  Pear- 

him.     He  has  a  right  to  be  satisfied  that  sons  v.  Tincker,  36  Maine,  384 ;  Wetherell 

the  stranger,  who  comes  to  him  to  de-  v.  Hughes,  45  Ibid.  61 ;  Stackpole  v.  Hil- 

mand  the  goods,  has  a  legal  right  to  make  ton,  121  Mass.  449. 
the  demand,  so  tliat  a  delivery  to  him  will  &  Blake  v.  Kimball,  106  Mass.  115. 

discharge  his  obligations  upon  his  receipt.  *"  Humphreys  v.  Cobb,  22  Maine,  380. 

Anv  such  stranger  who   comes   to   him 
[312] 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PEOPEETY.  §  376 

gards  the  officer  and  his  deputy  as  the  same.^  When  the  execu- 
tion is  placed  in  the  hands  of  another  officer,  it  is  necessary  that 
within  that  time  demand  sliould  be  made  upon  the  attaching  of- 
ficer for  the  goods,  in  order  to  hold  him  liable  for  them ;  ^  unless 
the  goods  are  in  the  hands  of  a  receiptor,  and  the  attaching  officer 
turns  over  the  receipt  to  the  plaintiff,  who  places  it,  with  the  ex- 
ecution, in  the  hands  of  a  different  officer ;  in  that  case  no 
demand  upon  the  officer  who  made  the  attachment  is  necessary.^ 
It  was  attempted  to  hold  the  receiptor  discharged,  unless  a  de- 
mand for  the  goods  was  made  upon  him  within  the  designated 
period  after  the  judgment ;  but  it  was  held,  that  if  the  officer's 
responsibility  for  the  goods  was  fixed,  so  as  to  give  him  a  right 
to  demand  them  of  the  receiptor,  the  demand  upon  the  latter 
might  be  made  at  any  time  before  suit  brought  upon  his  receipt.'^ 
In  Vermont,  however,  it  is  required  that  the  demand  shall  be 
made  within  the  life  of  the  execution.^ 

§  375.  Care  should  be  taken  that  the  execution  under  which 
the  demand  is  made  of  the  bailee  be  regular  ;  for  it  seems  he  is 
at  liberty  to  inquire  into  that  fact,  and,  where  the  action  is 
against  him  for  failing  to  deliver  the  property  to  be  levied  on 
to  satisfy  an  irregular  execution,  he  may  take  advantage  of  the 
irregularity  to  defeat  the  action.  Thus,  where  an  execution  was 
placed  in  an  officer's  hands,  returnable  within  sixty  days,  when 
by  law  it  should  have  been  returnable  within  one  hundred  and 
twenty  days,  and  the  officer,  having  demanded  the  goods  of  the 
bailee,  brought  suit  on  the  receipt,  alleging  a  demand  that  the 
execution  might  he  levied  on  the  goods,  the  declaration  was,  on 
demurrer,  adjudged  insufficient,  because  the  execution  was  ir- 
regular, and  the  plaintiff  had  lost  his  claim  on  the  goods  by  fail- 
ing to  take  out  a  regular  execution.^ 

§  376.  It  does  not  appear  that  a  personal  demand  upon  the  re- 
ceiptor is  necessary.     If  it  were,  it  would  be  in   his  power  to 

1  Humphreys  y.  Cobb,  22  Maine,  380 ;  5  Bliss  v.  Stevens,  4  Vermont,  88; 
Ayer  I'.  Jameson,  9  Vermont,  363.  Allen  v.   Carty,   19  Ibid.  65;  Carpenter 

2  Huniplireys  v.  Cobb,  22  Maine,  380  ;  v.  Snell,  37  Ibid.  255.  The  Supreme 
Ayer  y.  Jameson,  9  Vermont,  363;  Col-  Court  of  this  State  once  held  that  the 
lins  V.  Smith,  16  Ibid.  9.  demand  must  be  made  within  thirty  days 

8  Moore  v.  Fargo,  112  Mass.  254.  after  judgment.    Strong  v.  Hoyt,  2  Tyler, 

*  Webster   v.    Coffin,   14    Mass.   19G;     208. 
Colwell  V.  Richards,  9  Gray,  374.  6  Jameson  y.  Paddock,  14  Vermont,  491. 

[313] 


§377 


BAILMENT  OF   ATTACHED   PROPERTY.      [CHAP.  XlV.l 


elude  it,  and  thus  avoid  his  responsibility.  One  who  makes  a 
contract  to  deliver  specific  articles  on  demand,  should  be  always 
ready  at  liis  dwelling-house  or  place  of  business.  A  demand 
upon  him  personally,  for  goods  which  he  could  not  carry  about 
him,  would  be  liable  to  more  reasonable  objection  than  a  demand 
at  his  abode,  during  his  absence  ;  and,  therefore,  where  a  receiptor 
was  absent  from  the  State,  it  was  determined  that  a  demand 
made  at  his  dwelling-house,  of  his  wife,  was  sufficient.^  If  the 
receiptor  promise  to  deliver  the  attached  property  "  at  such  time 
and  place  as  the  officer  shall  appoint,"  a  demand  for  its  present 
delivery,  made  at  the  receiptor's  dwelling-house,  is  a  sufficient 
appointment  of  the  time  and  place. ^ 


§  377.  In  New  Hampshire,  merely  proving  a  demand  upon  the 
bailee  for  the  goods,  without  bringing  to  his  knowledge  that  they 
are  demanded  for  the  purpose  of  being  subjected  to  execution  in 
the  case  in  which  they  were  attached,  does  not  establish  a  con- 
version by  the  bailee.  The  court  say :  "  The  receiptor  is  in  no 
default,  unless  it  appears  that  the  object  of  the  demand  is 
brought  at  the  time  to  his  notice  ;  which  by  no  means  necessarily 


1  Mason  v.  Briggs,  16  Mass.  453.  Sed 
contra,  Phelps  v.  Gilchrist,  8  Foster,  266 ; 
where  the  Superior  Court  of  New  Hamp- 
shire take  the  opposite  ground,  and  say  : 
"  A  demand  for  these  purposes  is  in  its 
nature  personal.  It  is  a  call  by  a  person 
authorized  to  receive  property,  for  its 
delivery,  made  upon  the  person  who  is 
bound  to  make  such  delivery.  It  must 
be  such  that  the  person  required  to  de- 
liver tlie  property  may  at  once  discharge 
himself  by  yielding  to  the  claim  and  giv- 
ing up  the  property.  Leaving  a  notice 
at  a  party's  house  is  not  of  such  a  char- 
acter. It  gives  no  opportunity  for  the 
party  to  do  what  is  demanded,  and  it 
would  be  a  sufficient  answer  for  the  de- 
fendant to  make  in  such  a  case,  that 
though  he  was  notified  to  give  up  the 
property,  no  opportunity  was  afforded 
him  to  comply  with  the  notice.  No  rea- 
sonable construction  can  hold  a  receiptor 
bound  to  deliver  the  property  at  any 
time  and  at  any  place  where  he  may 
happen  to  be,  and  still  less  at  any  place 
where,  after  a  demand  left  at  his  house, 
[314] 


he  may  happen  to  be  able  to  find  the 
attaching  officer,  or  his  agent.  It  forms 
no  part  of  the  contract  of  a  depositary, 
a  bailee  to  keep  property  without  com- 
pensation, to  carry  the  property  to  the 
depositor,  in  order  to  return  it.  It  is 
entirely  sufficient,  that,  having  kept  the 
property  according  to  his  contract  in 
some  reasonable  and  suitable  place,  he 
is  there  ready  to  deliver  it.  If  a  demand 
is  made  at  any  other  place,  the  bailee  is 
entitled  to  liave  reasonable  time  and  op- 
portunity to  make  the  delivery  at  that 
place,  and  to  require  the  party  who  calls 
for  the  property  to  be  there  to  receive  it. 
Any  mode  of  making  the  demand  which 
precludes  the  party  from  availing  him- 
self of  these  rights,  is  clearly  insufficient, 
and  tlierefore,  the  leaving  a  written  de- 
mand at  a  receiptor's  house,  is  not  evi- 
dence either  of  a  breach  of  the  receiptor's 
contract,  or  of  a  conversion  of  the  prop- 
erty." See  Gilmore  v.  McNeil,  46  Maine, 
532  ;  Sanborn  v.  Buswell,  51  New  Hamp. 
573. 

2  Moore  v.  Fargo,  112  Mass.  254. 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PROPERTY.  §  379 

results  from  the  delivery  of  a  written  notice.  A  great  variety  of 
circumstances  may  exist,  which  would  prevent  such  a  communi- 
cation from  being  at  once  attended  to.  No  inference  is  to  be 
drawn  against  a  man  from  his  silence  or  inaction,  unless  it  appears 
that  he  was  aware  of  what  was  said  or  done  to  affect  his  interest. 
The  burden  is  upon  the  party  who  relies  upon  such  evidence  to 
establish  the  fact  that  the  party  against  whom  he  desires  an  in- 
ference to  be  drawn,  knew  and  understood  at  the  time  the  facts 
necessary  to  justify  such  inference."  ^ 

§  377  a.  Where  one  becomes  a  receiptor  for  property  attached 
in  several  cases,  a  demand  upon  him  for  the  property  in  one  of 
those  cases  is  sufficient  to  fix  his  liability  in  all  of  them,  if  judg- 
ment and  execution  shall  have  been  obtained  in  them,  so  as  to 
make  the  officer  liable  for  the  forthcoming  of  the  property  on 
execution.^  In  such  case,  if  the  receiptor  deliver  all  the  property 
in  one  suit,  it  will  discharge  his  receipts  in  the  others  ;  or  if,  out 
of  the  avails  of  the  property,  he  pay  the  judgment  in  one  case, 
he  cannot  be  held  to  pay  the  judgment  in  another  case  to  any 
greater  extent  than  the  balance  in  his  hands  of  the  value  of  the 
goods  attached.^ 

§  378.  Where  several  persons  jointly  become  receiptors,  a  de- 
mand of  the  goods  from  any  one  of  them  is  sufficient.*  In  such 
a  case,  where  it  was  agreed  "  that  a  demand  on  any  one  of  them 
should  be  binding  on  the  whole,"  and  one  of  them  indorsed  on 
the  receipt  an  acknowledgment  that  "  a  due  and  legal  demand  " 
had  been  made  on  him  by  the  officer,  it  was  considered  doubtful 
whether  such  an  admission  was  conclusive  upon  the  other 
receiptors.^ 

§  379.  Trover  or  replevin  will  lie  against  a  receiptor,  upon  his 
refusal  or  neglect  to  comply  with  a  demand  for  the  delivery  of 
the  property ;  ^  but  assumpsit  seems  to  be  quite  as  much  resorted 

1  Phelps  V.  Gilchrist,  8  Foster,  266.  ^  Bissell  v.  Huntington,  2  New  Hamp. 
SeeMoorew.  Fargo,  112  Mass.  254.                142;    Cargill    v.    Webb,    10    Ibid.    199; 

■^  Hinckley   v.  Bridgham,   46   Maine,  Webb   v.   Steele,   13   Ibid.   230;  Holt  v. 

450.  Burbank,  47  Ibid.  164;  Sibley  v.  Story, 

2  Haynes  v.  Tenney,  45  New  Hamp.  8  Vermont,  15 ;  Pettes  v.  Marsh,  15  Ibid. 
183.  454  ;  Dezell  v.  Odell,  3  Hill  (N.  Y.),  215; 

*  Griswold  v.  Plumb,  13  Mass.  298.  Stevens  v.  Fames,  2  Foster,  568. 

^  Fowles  V.  Pindar,  19  Maine,  420. 

[315] 


§  381  BAILMENT   OF   ATTACHED   PROPERTY.      [CHAP.  XIV. 

to  in  such  cases.  Trespass  will  not  lie.^  Wliere  the  oflficer  who  'j 
created  the  bailment  lays  a  second  attachment  on  the  property, 
while  in  the  bailee's  hands,  as  we  have  seen  he  may  do,^  he  may 
sustain  the  action,  in  virtue  of  such  second  attachment,  though 
that  under  which  the  property  was  bailed  may  have  been 
dissolved.^ 

§  380.  An  acknowledgment  by  the  bailee  of  a  demand  upon 
him  by  the  officer,  is  sufficient  evidence  of  a  refusal  to  deliver 
the  goods,  without  an  accompanying  admission  of  such  refusal.* 
The  delivery  of  goods  by  the  bailee  to  another  person  under  an 
adverse  claim  of  title,  or  a  conveyance  thereof  by  mortgage  to 
pay  his  own  debts,  is  equivalent  to  a  conversion.^  But  if  the 
conversion  be  with  the  knowledge  and  assent  of  the  officer,  he 
cannot  afterwards  hold  the  receiptor  liable  on  his  contract.^ 

§  381.  Of  what  defences  may  the  bailee  avail  himself  in  an 
action  on  his  receipt  ?  It  is  not  competent  for  him  to  show  that 
the  officer  who  levied  the  attachment  was  not  legally  qualified  to 
act  as  such,  if  he  was  fully  in  the  exercise  of  the  office  de  facto ;'^ 
nor  can  he  set  up  that  the  goods  were  not  attached,  as  stated  in 
the  receipt,  though  the  fact  be  that  the  attachment  was  a  nom- 
inal one,  and  that  the  officer  never  did  actually  seize  them  ;  ^  nor 
can  he  deny  that  the  goods  were  delivered  to  him  by  the  of- 
ficer ;  ^  nor  can  he  impeach  the  judgment  in  the  attachment  suit,^*' 
or  show  informality  or  irregularity  in  the  attachment.^^  An 
amendment  made  by  the  plaintiff  in  the  action  in  which  the 
property  was  attached,  but  which  did  not  tend  to  increase 
the  liability  of  the  defendant,  will  not  discharge  the  receiptor 
from  his  accountability ;  ^^  but  where,  after  an  attachment,  an  ad- 

1  Sinclair  v.  Tarbox,  2  New  Hamp.  Cady,  4  Ibid.  504;    Allen    v.  Butler,  9 

185.  Ibid.    122;    Stimson  v.   Ward,   47   Ibid. 

■■i  Ante,  §§  269,  356.  624 ;    Bowley   v.    Angire,  49    Ibid.  41 ; 

3  Whittier  v.  Smith,  11  Mass.  211;  Phillips  v.  Hall,  8  Wendell,  610 ;  Webb 
Whitney  v.  Farwell,  10  New  Hamp.  9.  v.  Steele,  13  New  Hamp.  230;  Howes  v. 

4  Cargill  V.  Webb,  10  New  Hamp.  199.  Spicer,  23  Vermont,  508. 

6  Baker     v.    Fuller,    21     Pick.    318;  ^  Spencer    v.    Williams,    2   Vermont, 

Stevens  v.  Fames,  2  Foster,  568.  209 ;  Allen  v.  Butler,  9  Ibid.  122. 

^  Stevens  v.  Fames,  2  Foster,  568.  '"  Brown  v.  Atwell,  31  Maine,  351. 

■?  Taylor  v.  Nichols,  19  Vermont,  104.  n  Drew  v.  Livermore,  40  Maine,  266. 

8  Jewett    V.    Torrey,    11    Mass.    219;  i-  Smith  r.  Brown,  14  New  Hamp.  67 ; 

Lyman  v.  Lyman,  Ibid.  317  ;  Morrison  v.  Miller  v.  Clark,  8  Pick.  412  ;  Laighton  v. 

Blodgett,  8  New  Hamp.  238  ;  Spencer  v.  Lord,  9  Foster,  237. 
Williams,    2   Vermont,  209 ;    Lowry   v. 
[316] 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PEOPERTY.  §  381 

ditional  plaintiff  was  introduced  into  the  suit,  it  was  held  that, 
as  the  ofl&cer  could  not  be  made  liable  for  the  property  to  the 
plaintiff  so  brought  in,  he  could  not  maintain  an  action  on  the  re- 
ceipt.i  ^  discharge  of  the  defendant  in  bankruptcy,  after  judg- 
ment against  him  in  the  attachment  suit,  will  not  discharge  the 
bailee ;  ^  even  if  the  petition  in  bankruptcy  was  filed  before 
judgment  was  rendered ;  ^  nor  the  commitment  of  the  debtor 
on  execution,  after  demand  made  on  the  receiptor  for  the  goods, 
and  his  failure  to  deliver  them,  though  the  plaintiff  bring  suit 
and  recover  judgment  against  the  debtor  and  his  surety,  for  an 
escape,  on  a  bond  given  by  them  for  the  prison  limits ;  ^  nor  will 
the  fact  that  the  defendant  has  an  execution  against  the  i)lain- 
tiff  for  a  larger  amount  than  that  under  which  the  goods  are  de- 
manded ;  ^  nor  will  an  agreement  between  the  plaintiff  and  the 
defendant  in  the  attachment  suit,  that  the  former  shall  not  en- 
force the  receipt,  and  a  forbearance  accordingly  to  enforce  it;^ 
nor  will  the  fact  that  after  failing  to  comply  with  the  demand  of 
the  officer  within  a  proper  time,  the  bailee  at  a  subsequent  time 
showed  the  officer  the  property,  and  told  him  to  take  it." 

The  question  has  arisen,  whether  a  bailee  can  set  up  as  a  de- 
fence to  an  action  on  his  receipt,  that  the  property  was  not  by 
law  subject  to  attacliment ;  and  it  has  been  held  to  depend  upon 
the  officer's  liability  to  the  defendant  for  a  return  of  the  prop- 
erty to  him.  If  he  is  so  liable,  the  bailee  cannot  make  such  a 
defence  ;  ^  but  if  the  bailee  gave  the  property  back  into  the  pos- 
session of  the  defendant,  the  officer  is  no  longer  liable  to  the 
latter  for  it,  and  the  bailee  may  discharge  his  Hability  to  him  by 
showing  that  the  property  was  exempt  by  law  from  attachment.^ 
In  the  cases  in  which  these  positions  were  taken,  the  receipts 
were  merely  an  engagement  to  deliver  to, the  officer  certain  prop- 
erty attached  by  him,  —  a  simple  bailment.  But  in  a  case  where 
the  receiptors  agreed  in  the  receipt  that  the  property  attached 
was  the  defendant's,  and  was  of  a  specified  value,  and  that  they 
would  on  demand  deliver  the  property  to  the  officer,  or,  in  case  of 
their  neglecting  or  refusing  to  deliver  it,  would  pay  to  him  on 

1  Moulton  V.  Chapin,  28  Maine,  505.  6  ives  v.  Hamlin,  5  Gushing,  534. 

2  Smitli  V.  Brown,  14  New  Hanip.  67.  '^  Scott  v.  Whittemore,  7  Foster,  309; 

3  Towle  V.  Kobinson,  15  New  Hamp.     Hill  v.  Wiggin,  11  Ibid.  292. 

408;  Lamprey  v.  Leavitt,  20  Ibid.  544.  8  Smith  v.  Cudworth,  24  Pick.  196. 

*  Twining  v.  Foot,  5  Gushing,  512.  9  Thayer  v.  Hunt,  2  Allen,  44'J. 

^  Jenney  v.  Rodman,  16  Mass.  464. 

[317] 


§  383  BAILMENT   OF   ATTACHED   PROrERTY.      [CHAP.  XIV. 

demand  the  amount  of  debt  and  costs  which  should  be  recovered 
in  the  suit ;  it  was  held,  that  the  receiptors  could  not  set  up  as  ^_| 
a  defence  to  an  action  by  the  officer  on  the  receipt,  either  that  jHI 
the  property  was  not  the  defendant's,  or  that  it  was  not  subject  ^■1 
to  attachment.!  And  where  a  mail  wagon  and  horses,  which  ^"" 
were  in  use  upon  a  mail  route  in  carrying  the  mail,  were  attached 
and  delivered  to  a  receiptor,  who  was  afterwards  sued  on  his  re- 
ceipt ;  it  was  held,  that  the  attachment  was  illegal  ;  that  the  offi- 
cer was  not  liable  to  tlie  creditor  for  the  property  ;  and  that  the 
bailee  might  set  up  the  illegality  of  the  attachment  as  a  defence 
against  his  receipt.^ 

§  382.  If  an  officer,  after  having  delivered  property  to  a  re- 
ceiptor, seize  it  under  another  attachment,  and  take  it  out  of  the 
custody  of  the  receiptor,  this  puts  an  end  to  the  contract  of  bail- 
ment, and  the  officer  cannot  recover  on  the  receipt.^  But  if  the 
bailee  himself,  after  the  bailment,  levy  an  attachment  on  the 
goods  and  sell  them,  this  is  no  defence  to  the  action  on  his  re- 
ceipt, nor  can  it  be  set  up  in  mitigation  of  damages.*  Where, 
however,  before  the  bailment,  the  property  had  been  attached  in 
another  suit  against  the  same  defendant,  and  upon  the  execution 
in  that  case  had  been  seized  and  sold,  the  bailee  delivering  it  to 
the  officer  for  that  purpose,  it  was  held,  that  as  the  first  attach- 
ing officer  had  a  better  title  to  it  than  the  second,  the  latter 
could  not  maintain  an  action  on  the  receipt  taken  by  him.  And 
it  was  considered  to  be  immaterial  whether  the  first  attachment 
was  fraudulent  or  not,  if  the  bailee  was  not  a  party  to  the  fraud ; 
or  whether  the  bailee  had  notice  or  not  tllat  the  plaintiff  in  the 
suit  in  which  he  became  bailee,  intended  to  contest  the  first  at- 
tachment on  the  ground  of  fraud.^ 

§  383.  Where  a  receipt  for  attached  property  bound  the  makers 
to  return  the  property,  or,  at  their  choice,  to  pay  the  officer  cer- 
tain sums,  when  called  for,  after  judgment  should  be  recovered 
on  the  demands  on  which  the  property  was  attached  ;  and  it  was 

1  Bacon   v.  Daniels,   116   Mass.  474;  «  Beach  v.  Abbott,  4  Vermont,  606; 
Stevens  v.  Stevens,  39  Conn.  474.     This  Rood  v.  Scott,  5  Ibid.  263. 
is  tlie  same  ground  as  that  talten  in  otlier  *  Whittier  v.  Smith,  11  Mass.  211. 
States  in  regard  to  defences  against  bail  »  Webster  v.   Harper,  7   New  Hamp. 
bonds.     See  ante,  §  323.  594. 

2  Harmon  v.  Moore,  59  Maine,  428. 

[318] 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PKOPERTY.  §  386 

shown  that  soon  after  the  execution  of  the  receipt  the  property 
was  sold  by  the  officer,  with  the  consent  of  the  plaintiff,  defend- 
ant, and  receiptor,  and  the  money  paid  into  the  hands  of  the 
receiptor ;  it  was  held,  that  the  sale  was  an  implied  rescinding  of 
the  contract,  and  that  the  officer  could  neither  maintain  trover 
for  the  property,  nor  assumpsit  upon  the  receipt  for  the  money.^ 

§  384.  A  dissolution  of  the  attachment,  and  a  subsequent  de- 
livery of  bailed  property  by  the  bailee  to  the  person  entitled  to 
it,  discharge  the  bailee  from  liability  to  the  officer.  Therefore, 
where,  under  the  insolvent  law  of  Massachusetts,  an  assignment 
by  an  insolvent  is  declared  to  vest  all  his  property  in  the  assignees, 
*'  although  the  same  may  be  attached  on  mesne  process  as  the 
property  of  said  debtor ;  and  such  assignment  shall  be  effectual 
to  pass  all  the  said  estate,  and  dissolve  any  such  attachment ;  " 
and  a  defendant,  after  an  attachment  and  bailment  of  his  prop- 
erty, made  an  assignment  in  insolvency,  and  after  the  assignment 
the  bailee  delivered  the  property  over  to  the  assignees  ;  it  was 
held,  that  he  was  not  liable  on  his  receipt.^  So,  where,  by  the 
operation  of  §  14  of  the  general  bankrupt  act  of  1867,  an  attach- 
ment taken  out  within  four  months  previous  to  the  act  of  bank- 
ruptcy of  the  defendant,  was  dissolved,  it  was  held,  that  the 
officer  could  not  enforce  a  receiptor's  obligation  for  the  return  of 
the  property .3 

§  385.  Where  a  horse  was  attached  and  delivered  to  a  bailee, 
and  before  the  expiration  of  the  time  limited  for  its  delivery  it 
died,  without  any  fault  of  the  bailee,  he  was  held  not  to  be  an- 
swerable for  its  value.^  In  such  case  no  fault  on  his  part  is  to  be 
presumed.  The  presumption  is  the  other  way  ;  and  if  it  is  sought 
to  charge  him  for  fault,  such  fault  must  be  proved.^  But  where 
the  bailee  permitted  the  horse  to  be  sold  by  the  defendant  to  a 
third  person,  who  took  the  same  into  his  possession,  and  the  horse 
then  died,  its  death  was  held  to  be  no  defence  to  an  action  on 
the  bailee's  receipt.^ 

§  386.  An  officer  is  not  bound  to  accept  from  a  receiptor  a 

1  Kelly  V.  Dexter,  15  Vermont,  310.  3  Mitchell  v.  Goocli,  60  Maine,  110. 

2  Sprague  v.  Wlieatland,  3  Metcalf,  *  Sliaw  v.  Laughton,  20  Maine,  266 ; 
410  ;  liutterfieUl  i'.  Converse,  10  Cusliing,     Ant^  §  341. 

817  ;  Shumway  v.  Carpenter,  13  Allen,  ^  Cross  ;;.  Brown,  41  New  Hamp.  283. 

68.  r  '^  Thayer  i^.  Hunt,  2  Allen,  449. 

[319] 


§388 


BAILMENT   OF   ATTACHED   PROPERTY.      [CHAP.  XIvJ 


different  article  from  that  attached,  though  it  be  of  the  same 
description,  quality,  and  quantity.^  And  if  a  receiptor,  when 
the  attached  property  is  demanded  of  him  by  the  officer,  deliver 
to  him  other  like  property,  which  is  sold  by  the  officer,  and  being 
insufficient,  the  officer  sue  him  on  the  receipt,  it  is  no  defence 
for  the  receiptor  to  say  that  the  property  delivered  was  in  lieu  of 
that  attached,  unless  the  officer  expressly  agreed  it  should  be  so 
received.  In  such  case  it  is  the  duty  of  the  bailee  to  redeliver 
the  same  property  he  had  received,  or  pay  the  value  of  it.  If  he 
substituted  other  property,  which  was  sold  on  the  execution,  he 
would  be  liable  still  for  the  property  attached ;  but  the  proceeds 
of  that  sold  would  extinguish  that  liability  pro  tanto? 

§  387.  Where  a  partnership  gave  a  receipt  for  property  which 
had  been  attached  on  a  writ  against  a  former  partnership,  com- 
posed in  part  of  the  same  persons,  the  debts  of  which  the  re- 
ceiptors, as  successors  of  the  former  firm,  had  agreed  to  pay,  the 
receiptors,  when  sued  on  the  receipt,  were  not  allowed  to  contest 
its  validity  on  the  ground  that  the  property  of  the  n&'w  partner- 
ship was  not  liable  to  attachment  upon  a  demand  against  the  old 
firm.^ 


§  388.  We  have  seen  ^  that  the  right  of  the  officer  to  retake 
bailed  property  from  the  possession  of  the  bailee  depends  on  his 
liability  therefor,  either  to  tlie  plaintiff,  the  defendant,  or  another 
creditor  of  the  defendant,  who  has,  through  the  same  officer,  laid 
a  second  attachment  on  the  property,  while  it  was  still  in  the 
bailee's  possession.  The  same  rule  applies  where  the  officer  sues 
on  the  receipt ;  whether  the  receipt  be  a  simple  contract,  or  a 
sealed  instrument.^  The  law  recognizes  the  bailee's  right  to 
permit  the  property  to  go  back  into  the  defendant's  possession ; 
and  where  he  does  so,  considers  his  receipt,  in  effect,  as  a  contract 
to  pay  the  demand  upon  which  the  property  was  attached ;  ^  and 
it  is,  therefore,  well  settled  that,  in  such  case,  the  bailee's  liability 
to  the  officer,  where  there  is  only  one  attachment,  depends  alto- 


1  Scott  V.  Wliittemore,  7  Foster,  309 ; 
Anthony  v.  Comstock,  1  Rhode  Island, 
454 ;  Gilmore  v.  McNeil,  46  Maine,  532. 

'^  Sewell  V.  Sowles,  13  Vermont,  171 ; 
Smith  V.  Mitchell,  31  Maine,  287. 

"*  Morrison  v.  Blodgett,  8  New  Hamp. 
238, 

[320] 


*  Ante,  §§  353,  354,  355. 

5  Clark  V.  Gaylord,  24  Conn.  484 ; 
Fowler  v.  Bishop,  31  Ibid.  560  ;  Drayton 
V.  Merritt,  33  Ibid.  184 ;  Sanford  v.  Pond, 
37  Ibid.  588. 

6  Whitney  v.  Farwell,  10  New  Hamp.  9. 


CHAP.  XIV.]      BAILMENT   OF  ATTACHED   PROPERTY.  §  389 

gether  upon  the  officer's  liability  to  the  plaintiff ;  and  that,  if  the 
officer  be  no  longer  liable  to  the  plaintiff,  he  cannot  maintain  an 
action  on  the  receipt.^  And  where  the  officer,  no  longer  liable 
to  either  plaintiff  or  defendant  in  the  action  in  which  the  bailment 
was  created,  seeks  to  enforce  the  receipt  for  the  benefit  of  a  sec- 
ond attaching  creditor,  it  is  a  sufficient  defence,  that,  before  the 
second  attachment  was  made,  the  property  had  gone  into  the  de- 
fendant's possession,  and  that  the  first  attachment  was  satisfied 
before  the  officer  demanded  the  property  of  the  bailee.^ 

§  389.  If  an  officer  attach  property  as  the  defendant's,  he  may 
notwithstanding  show,  in  an  action  by  the  plaintiff  against  him 
for  not  having  it  in  hand  to  satisfy  the  execution  in  the  case,  that 
it  did  not  in  fact  belong  to  the  defendant.^  This  proceeds  from 
the  obvious  principle,  that  the  officer  shall  not  be  responsible  to  the 
plaintiff  for  not  doing  that  which  he  w^as  under  no  legal  obligation 
to  do ;  and  as  he  is  under  no  obligation  to  keep  the  property  of 
one  man  to  answer  the  debt  of  another,  he  cannot  be  made  liable 
for  not  doing  so.  If,  then,  in  such  a  case  the  property  has  been 
bailed,  it  being,  as  we  have  seen,  a  well-settled  principle  that  the 
bailee's  liability  to  the  officer  depends  upon  the  officer's  account- 
ability for  the  property  to  some  one  else,  it  follows,  that,  where 
the  property  is  not  the  defendant's,  the  officer  should  not  be  al- 
lowed to  hold  the  receiptor  answerable  for  it,  if  it  has  gone  into 
the  possession  of  the  rightful  owner.  The  mere  fact  that,  at  the 
time  of  the  attachment,  the  property  did  not  belong  to  the  de- 
fendant, will  not,  of  itself,  be  a  sufficient  defence  against  the 
bailee's  liability  on  his  receipt ;  for  the  officer,  being  liable  to  the 
true  owner,  must  obtain  possession  of  the  property  in  order  to 
restore  it.*  But  where  it  appears  not  only  that  the  property  be- 
longed, but  has  been  delivered,  to  a  third  person,  it  is  unques- 
tionable that  the  officer  cannot  maintain  an  action  aoainst  the 


1  Fisher  v.  Bartlett,  8  Maine,  122 ;  3  Ante,  §  294 ;  Fuller  v.  Holden,  4 
Carr  y.  Farley,  12  Ibid.  328;  Sawyer  w.  Mass.  498;  Denny  v.  Willard,  11  Pick. 
Mason,  I'J  Ibid.  41);  Moulton  v.  Cliapin,  519;  Canada  u.  Southwick,  16  Ibid.  556 ; 
28  Ibid.  505;  Plaisted  v.  Hoar,  45  Ibid.  Dewey  v.  Field,  4  Metcalf,  381 ;  Sawyer 
380;  Harmon  v.  Moore,  59  Ibid.  428;  w.  Mason,  19  Maine,  49;  Burt  y.  Perkins, 
Lowry  v.  Stevens,  8  Vermont,  113  ;  Jame-  9  Gray,  317. 

son  V.  Paddock,    14  Ibid.  491;  Frost   v.  *  Fisher  v.   Bartlett,   8    Maine,    122; 

Kellogg,  23  Ibid.  308.  Scott    v.    Wiiitteniore,    7    Foster,    309 ; 

2  Whitney  v.  Farwell,  10  New  Ilamp.  Clark  v.   Gaylord,  24  Conn.  484. 
9;  Hill  V.  Wiggin,  11  Foster,  292. 

21  [321] 


§391 


BAILMENT   OF  ATTACHED   PROPERTY.      [CHAP.  XIV. 


bailee  for  it.^  In  Louisiana,  it  would  seem  not  to  be  necessary  to 
show  tliat  the  property  had  gone  back  into  the  hands  of  the  actual 
owner,  if  it  was  in  the  hands  of  those  who  were  entitled  to  the 
possession  of  it ;  as  where  it  was  consigned  by  the  owner  to 
commission  merchants,  and  the  latter  took  it  from  the  possession 
of  the  officer,  upon  executing  a  bond  to  return  it ;  there,  the 
commission  merchants  being  entitled  to  retain  their  possession, 
which  was  in  legal  contemplation  the  possession  of  the  owner, 
would  not  be  required  to  show  that  the  owner  had  the  actual 
custody  of  the  property.^ 

§  390.  Where,  however,  in  a  receipt  which  admitted  the  prop- 
erty to  have  been  attached  as  the  defendant's,  the  following 
clause  was  embodied,  —  "  and  we  further  agree  that  this  receipt 
shall  be  conclusive  evidence  against  us  as  to  our  receipt  of  said 
property,  its  value  before  mentioned,  and  our  liability  under  all 
circumstances  to  said  officer  for  the  full  sura  above  mentioned;" 
—  it  was  held,  that  the  receiptors  would  not  be  allowed  to  avoid 
their  liability,  by  proving  that  the  property  was  not  the  de- 
fendant's.^ 


§  391.  Is  the  receiptor  estopped  by  his  receipt  from  asserting 
property  in  himself  in  the  goods  attached  ?  This  depends  upon 
the  circumstances  under  which  he  undertakes  to  assert  it.  If 
sued  by  the  defendant  for  a  return  of  the  goods,  after  dissolution 
of  the  attachment,  his  receipt  does  not  conclude  him  from  show- 
ing that  they  belonged  to  himself,  and  not  to  the  defendant.^  If 
the  receiptor,  after  having  delivered  up  the  property  according 
to  his  contract,  bring  replevin  against  the  officer  for  it,  he  is  not 
estopped  from  maintaining  the  action,  by  reason  of  having  given 
the  receipt,  and  therein  having  acknowledged  that  the  articles 
attached  were  the  property  of  the  defendant ;  for  the  engage- 
ment was  performed,  and  the  estoppel  could  not  be  permitted  to 
extend  beyond  the  terms  and  duration  of  the  contract.^ 


1  Learned  v.  Bryant,  13  Mass.  224 ; 
Fisher  v.  Bartlett,  8  Maine,  122;  Sawyer 
V.  Mason,  19  Ibid.  49;  Stanley  v.  Drink- 
water,  43  Ibid.  468  ;  Quine  v.  Mayes,  2 
Robinson  (La.),  510;  Lathrop  v.  Cook, 
14  Maine,  414;  Scott  v.  Wliitteraore,  7 
Foster,  30S) ;  Clark  v.  Gaylord,  24  Conn. 
434 ;  Burt  v.  Perkins,  9  Gray,  317. 
[322] 


2  Quine  v.  Mayes,  2  Robinson  (La.), 
510. 

3  Penobscot  Boom  Corporation  v.  Wil- 
kins,  27  Maine,  346. 

*  Barron  v.  Cobleigh,  11  New  Hamp. 
557. 

5  Johns  V.  Church,  12  Pick.  557 ;  La- 
throp V.  Cook,  14  Maine,  414. 


CHAP.  XrV.]      BAILMENT   OF   ATTACHED   PROPERTY.  §  393 

§  392.  But  as  between  him  and  the  officer,  in  an  action  by  the 
latter  on  the  receipt,  where  the  receipt  admits  the  goods  to  be 
the  defendant's,  or  to  have  been  attached  as  his,  it  has  been  re- 
peatedly held,  that  the  bailee  is  estopped  by  the  receipt  from 
setting  up  property  in  himself.^  And  so  in  New  York,  where 
the  receipt  contained  no  such  admission,  but  simply  an  acknowl- 
edgment of  having  received  the  property,  and  a  promise  to  rede- 
liver it  at  a  certain  time  and  place.^  Later  cases,  however,  qualify 
this  general  rule.  While  it  is  conceded  on  all  hands  that  a  re- 
ceiptor who  conceals  from  the  officer  his  ownership  of  the  prop- 
erty, and  suffers  it  to  be  attached  as  the  defendant's,  thereby 
preventing  the  officer,  perhaps,  from  attaching  other  property,  is 
precluded,  when  sued  on  the  receipt,  from  setting  up  property  in 
himself ;  yet  it  is  considered  to  be  materially  different  where  he 
makes  known  to  the  officer,  at  the  time  of  the  attachment,  that 
the  property  is  his,  and  not  the  defendant's.  In  such  case  it  is 
held  in  Massachusetts,  that  the  bailee  may  set  up  property  in 
himself,  not  as  a  bar  to  the  action,  but  as  showing  the  officer  en- 
titled only  to  nominal  damages  ;  ^  while  in  Vermont  and  in  Cali- 
fornia it  is  considered  to  constitute  a  full  defence.*  And  in  New 
Hampshire,  the  giving  of  a  receipt  for  the  property  by  the  owner 
of  it,  is  no  bar  to  an  action  of  trespass  by  him  against  the  attach- 
ing officer.^ 

§  393.  The  only  remaining  topic  in  this  connection  is  the 
measure  of  the  officer's  recovery  in  the  action  against  the  bailee. 
Whether  he  shall  recover  only  nominal  damages,  or  the  full  value 
of  the  property,  or  the  amount  of  the  plaintiffs  demand,  not 
exceeding  the  value  of  the  property,  is  to  be  determined  by  the 
facts  of  each  case.  Where,  at  the  institution  of  his  suit,  he  has 
a  full  right  of  action  against  the  receiptor,  but  afterward,  and 
before  obtaining  judgment,  he  is,  by  the  plaintiff's  failure  to  take 
the  needful  steps,  released  from  responsibility  to  him,  and  at  the 

1  Johns  V.  Church,  12  Pick  557  ;  Rob-  2  Dgzell  v.  Odell,  3  Hill  (N.  Y.),  215. 

inson  v.  Mansfield,  13  Ibid.  139  ;  Bursley  3  Bursley  v.  Hamilton,  15  Pick.  40. 

r.  Hamilton,  15  Ibid.  40;  Dewey  u.  Field,  *  Adams   v.   Fox,    17   Vermont,   361; 

4   Metcalf,   381 ;    Sawyer  v.   Mason,   19  Eleven  v.  Freer,  10  California,  172.     See 

Maine,  49  ;  Penobscot  Boom  Corporation  Jones  v.  Gilbert,  13  Conn.  507. 
V.  Wilkins,  27  Ibid.  345;  Barron  v.  Cob-  ^  Morse  v.  Hurd,  17  New  Hamp.  246. 

leigli,  11  New  Hamp.  557;  Drew  v.  Liv- 
ermore,  40  Maine,  2(J0  ;  Potter  v.  Sewall, 
54  Ibid.  142. 

[323] 


§  395  BAILMENT  OF  ATTACHED  PROPERTY.      [CHAP.  XIV. 

same  time  the  propert}'  has  gone  back  into  the  defendant's  pos- 
session ;  as  he  is  no  longer  liable  to  either  plaintiff  or  defendant, 
he  can  recover  only  nominal  damages  against  the  receiptor.^ 

§  394.  "Where  the  value  of  the  property  is  stated  in  the  receipt, 
it  is  not  to  be  considered  as  descriptive  of  the  property,  but  as  a 
part  of  the  contract,  and  as  constituting  a  stipulation  for  a  rule 
of  damages  against  the  receiptor  in  case  of  a  non-delivery  of  the 
property ;  and  hence  an  officer  will  not  be  allowed,  in  an  action 
on  the  receipt,  whether  in  form  ex  contractu  or  ex  delicto,  to  give 
evidence  that  the  property  was  of  greater  value  than  that  stated 
in  the  receipt  ;2  and  of  course  the  receiptor  cannot  give  evidence 
that  it  was  of  less  value.'^  In  such  case,  where  all  the  articles  are 
valued  at  a  gross  sum,  the  receiptor  cannot  avoid  his  liability, 
pro  tanto,  by  tendering  to  the  officer  part  of  the  goods,  unless  he 
has  a  reasonable  excuse  for  not  delivering  thq  residue.^  But  if 
the  value  of  each  article  is  separately  stated  in  the  receipt,  and 
the  bailee  tenders  part  of  them  to  the  officer,  the  latter  can 
recover  only  for  the  articles  not  tendered,  according  to  their  ad- 
mitted value.^ 

§  395.  Whether  the  officer  can  recover  the  full  value  of  the 
property,  depends  upon  his  being  liable  to  that  extent  for  it  to 
some  one  else.  If  the  amount  of  the  judgment  in  the  attach- 
ment suit  be  greater  than  the  value  of  the  property,  then  the 
measure  of  the  recovery  is  the  value  of  the  property.^  If  the 
property  has  gone  back  to  the  defendant's  possession,  and  its 
value  exceeded  the  amount  of  the  judgment  in  the  attachment 
suit,  the  rule  of  damages  is  the  amount  of  the  judgment  and 
costs  ;''  but  if  the  amount  of  the  attachments  upon  it  is  less  than 
the  value  stipulated,  the  recovery  cannot  be  for  a  greater  amount 
than  that  necessary  to  satisfy  the  attachments.^  But  where  the 
bailee  has  converted  the  property  to  his  own  use,  or  still  holds  it, 
the  officer  is  not  onlj^  authorized,  but  obliged,  to  take  judgment 

1  Norris  v.  Bridgham,  14  Maine,  429;  3  Smith  v.  Mitchell,  31  Maine,  287.  * 
Moulton  V.  Chajiin,  28  Ibid.  505;  Farn-  *  Drown  v.  Smith,  3  New  Hamp.  299; 
ham  V.  Cram,  15  Ibid.  79.  Remick  v.  Atkinson,  11  Ibid.  256. 

2  Parsons  v.  Strong,  13  Vermont,  235  ;  5  Remick  v.  Atkinson,  11  New  Hamp. 
Drown    v.    Smith,   3   New    Hamp.    299;  256. 

Remick  v.  Atkinson,  11  Ibid.  256;  Jones  ^  Cross  v.  Brown,  41  New  Hamp.  283. 

V.  Gilbert,  13  Conn.  507  ;  Stevens  v.  Ste-  "'  Cross  v.  Brown,  41  New  Hamp.  283. 

vens,  39  Ibid.  474.  8  Parnham  v.  Cram,  15  Maine,  79. 
[324] 


CHAP.  XIV.]      BAILMENT   OF   ATTACHED   PEOPERTY.  §  396 

for  the  full  value  ;  and  if  he  take  it  for  less,  he  will  be  lialDle  to 
the  defendant  for  the  deficiency .^ 

§  395  a.  It  was  attempted,  in  New  Hampshire,  but  without 
success,  to  modify  the  rule  stated  in  the  next  preceding  section, 
that  if  the  amount  of  the  judgment  in  the  attachment  suit  be 
greater  than  the  value  of  the  property,  then  the  measure  of  the 
recovery  is  the  value  of  the  property.     The  case  was  this :    an 
officer  levied  an  attachment  on  a  quantity  of  personal  property, 
which  was  claimed  by  a  third  person,  who  obtained  a  receiptor 
for  it,  and  in  the  receipt  the  property  was  valued  in  gross  at 
$800.     The   claimant   afterwards   disposed   of  the  whole  prop- 
erty.    Judgment  having  been  obtained  in  the  attachment  suit  for 
$898.83,  the  officer  brought  trover  against  the  bailee  for  a  part 
of  the  articles ;  and  it  was  agreed  between  the  parties,  for  the 
purposes  of  the  case,  that  the  whole  property  embraced  in  the 
receipt  was  worth  much  more  than  |800,  and  that  the  articles  for 
which  the  officer  sued  the  bailee  were  also  worth  much  more 
than  that  sum.     The  officer  claimed   that   he   was  entitled    to 
recover,  either  the  full  value  of  the  articles  for  which  he  sued, 
not  exceeding  the  amount  of  the  judgment  in  the  attachment 
suit,  or  the  amount  stated  in  the  receipt  as  the  value  of  all  the 
property  attached,  with  interest  after  demand.     On  the  other 
hand,  the  bailee  claimed  that  the  valuation  stated  in  the  receipt 
was  conclusive  on  the  officer,  and  that  he  was  entitled  to  recover 
only  such  proportion  of  the  $800  and  interest  as  the  property  for 
which  he  brought  trover  bore  to  the  whole  property  receipted 
for.     The  court  held,  that  the  bailee's  position  was  not  tenable, 
and  that  the  officer  should  recover  the  amount  of  the  value  stated 
in  the  receipt.^ 

§  396.  The  judgment  which  an  officer  may  recover  against  a 
receiptor  is  merely  collateral  to  the  debt  due  from  the  defendant 
to  the  plaintiff  in  the  attachment,  and  for  the  benefit  and  security 
of  the  officer;  and  when  the  defendant  has  no  claim  on  him,  and 
his  obligation  to  the  plaintiff  is  removed,  by  the  payment  of  the 
debt  for  which  the  attachment  issued,  the  judgment  becomes  a 

1  Bissell  V.  Huntington,  2  New  Hamp.  Sawyer  v.  Mason,  19  Maine,  49;  Catlin 
142 ;  Whitney   v.  Tarwell,    10  Ibid.   9 ;     v.  Lowrey,  1  D.  Chipman,  396. 

2  Spear  v.  Hill,  52  New  Ilamp.  323. 
[325] 


§  396  BAILMENT   OF   ATTACHED  PROPERTY.      [CHAP.  XIV, 

mere  dead  letter,  and  cannot  be  enforced.^  But  if  the  debt  be 
satisfied  after  the  officer  has  sued  on  the  receipt,  that  will  not 
bar  his  action,  but  he  will  still  be  entitled  to  recover  nominal 
damages.^ 

1  Paddock    v.  Palmer,    10   Vermont,  '-*  Stewart  v.  Platts,   20  New   Hamp. 

581 ;  Brown  v.  Crockett,  22  Maine,  537.       476. 
[32G] 


CHAP.  XV.]    ATTACHMENTS  IMPROVIDENTLY  ISSUED,  ETC.      §  397 


CHAPTER    XV. 

ATTACHMENTS    mPROVIDENTLY    ISSUED,    AND    THE    MEANS    OF 
DEFEATING   THEM. 

§  397.  Issuing  an  attachment  improvidently,  is  to  be  dis- 
tinguished from  issuing  it  irregularly.  In  the  latter  case,  the 
defect  appears  upon  the  face  of  the  proceedings,  and  may  be 
taken  advantage  of  by  a  motion  to  quash  or  dissolve.  In  the 
former,  all  the  preliminary  steps  may  be  regular,  and  yet  the  at- 
tachment have  been  improvidently  granted,  because  the  allega- 
tions on  which  it  issued  were  untrue.  Such  is  the  difference 
between  these  two  classes  of  cases.^ 


1  In  Lovier  v.  Gilpin,  6  Dana,  321,  the 
Court  of  Appeals  of  Kentucky  use  the 
following  language  :  "  Upon  the  face  of 
the  record  of  this  attachment,  that  is,  upon 
the  face  of  the  bond  and  attachment  itself, 
there  can  be  no  question,  nor  is  any  made, 
as  to  its  having  been  issued  by  the  proper 
justice,  in  the  proper  county,  and  in  a 
proper  case,  so  far  as  the  case  is  to  be 
made  out  to  tlie  justice,  in  order  to  au- 
thorize the  emanation  of  the  process,  or 
so  far  as  it  is  to  be  stated  in  the  process 
itself,  in  order  to  sliow  its  validity.  In 
issuing  the  attachment,  therefore,  the 
justice  has  complied  with  every  requisi- 
tion of  the  law,  and  upon  the  face  of  the 
record  there  is  no  want  of  jurisdiction  to 
issue  process  in  the  case ;  no  mis  judgment 
in  deciding  upon  the  facts  necessary  to 
authorize  the  process;  no  excess  of  juris- 
diction, either  in  the  nature  of  tlie  process 
issued,  or  in  issuing  it  in  a  case  in  which 
the  law  does  not  authorize  such  process 
to  be  sued  out.  For  the  justice  is  not 
made  the  judge  of  the  facts,  nor  is  he  to 
inquire  into  them,  except  as  tliey  are  pre- 
sented in  the  statement  of  the  applicant 
for  the  writ,  and  as  thus  presented  they 
are  sufficient.  .  .  .  The  autliority  of  the 
justice  does   not  depend  in  any  degree 


upon  the  truth  of  the  statement  made  by 
the  applicant,  and  on  tlie  ground  of  which 
the  attachment  issues,  but  upon  the  suffi- 
ciency of  the  statement  itself  when  com- 
pared with  the  law.  To  prove  the  falsity  of 
a  statement  which  is  sufficient  in  itself,  does 
not,  therefore,  disprove  the  authority  or  ju- 
risdiction of  the  justice,  nor  prove  nor  make 
the  process  void  for  want  of  authority. 
Such  proof  makes  out  a  case  of  process 
unduly  or  improperly  issued,  not  on  the 
ground  of  want  of  authority  in  the  officer 
to  issue  it,  but  on  the  ground  that  the 
statement  which  gave  the  authority  in 
the  particular  case  is  untrue  as  to  a  fact, 
which,  if  truly  stated,  would  have  shown 
that  there  was  no  authority  in  the  partic- 
ular case.  Such  proof  might  pe^-haps  be 
sufficient,  in  a  direct  proceeding  for  the 
purpose,  to  authorize  the  annulment  or 
vacation  of  the  process  ;  it  would  certainly 
be  sufficient  to  abate  the  attachment  on 
proper  pleading.  But  until  it  is  set  aside, 
or  in  some  manner  annulled,  it  remains  a 
part  of  the  record  of  the  proceeding,  — 
fundus  officio,  it  is  true,  but  unaffected  by 
the  extraneous  matter,  and  being  perfect 
and  regular  in  itself,  and  still  showing  on 
its  face  that  it  was  issued  by  legal  au- 
thority, it  is,  therefore,  still  sufficient  to 
[327] 


§  400  ATTACHMENTS    IMPROVIDENTLY  ISSUED,      [CHAP.  XV. 

§  398.  Where,  as  in  the  New  England  States,  under  the  ordi- 
nar}'  process  of  summons  an  attachment  may  be  made,  if  the 
phiintiff  so  directs,  it  is  of  no  importance  to  the  defendant  to  be 
allowed  to  impeach  the  attachment  for  improvidence  ;  but  where, 
as  elsewhere  is  universally  the  case,  an  affidavit  alleging  certain 
facts  is  required,  to  authorize  an  attachment  to  issue,  this  privi- 
lege is  of  great  value  to  defendants,  who  might  otherwise  be 
remedilessly  ruined  by  the  recklessness  or  bad  faith  of  creditors ; 
and  it  is  in  many  States  secured  to  them  by  statute, 

§  399.  There  can  hardly  be  room  for  doubt  that,  without  the 
aid  of  express  statutory  provision,  a  defendant  may,  in  one  form 
or  another,  contest  the  truth  of  the  grounds  alleged  by  the  plain- 
tiff for  obtaining  the  attachment.  In  Mississippi,^  Arkansas,^  and 
Texas,^  it  is  not  so;  but,  as  the  following  review  will  exhibit, 
this  doctrine  is  upheld  in  New  York,  Pennsylvania,  New  Jersey, 
Maryland,  South  Carolina,  Tennessee,  Kentucky,  Indiana,  and 
Illinois.  The  modes  by  which  the  contest  may  be  instituted  are 
different,  as  will  be  seen  in  the  succeeding  sections,  setting  forth 
as  well  those  used  without  as  those  used  with  statutory  authority. 

§  400.  In  New  York,  prior  to  the  adoption  of  the  Code  of 
Procedure,  the  mode  of  defeating  an  attachment  improvidently 
issued,  was  by  supersedeas^  obtained  from  the  Supreme  Court,  on 
affidavits  ffied  by  the  defendant,  showing  the  falsity  of  that  on 
which  the  writ  was  obtained.  That  court,  at  an  early  day, 
asserted  its  jurisdiction  in  such  cases,*  and  afterwards  constantly 
exercised  it.  Therefore,  where  an  attachment  was  obtained  on 
an  allegation  that  the  defendant  had  departed  the  State,  with  the 
intent  of  avoiding  arrest,  and  of  defrauding  his  creditors,  a  super- 
justify  the  immediate  acts  which  it  com-  Stewart,  226.  This  opinion,  however, 
manded.tliough  not  tending  to  justify  the  was  afterwards  in  effect  overruled  in 
illegal  act  of  obtaining  it  upon  a  false  Middlebrook  v.  Ames,  5  Stewart  &  Porter, 
statement,  or  the  actual  injury  conse-  158.  Subsequently, by  statute,  the  defend- 
quent  upon  that  act."  ant  was  precluded    from   contesting   the 

1  Smith  V.  Herring,  10  Smedes  &  Mar-  truth  of  the  affidavit ;  and  though  the  stat- 
shall,  518.  ute  referred  only  to  original  attachments, 

-  Taylor  v.  Ricards,  9  Arkansas,  378  ;  it  was  held,  in  Jones  v.  O'Donnell,  9  Ala- 
Mandel  v.  Peet,  18  Ibid.  236.  bama,  695,  to  apply  as  well  to  an  ancil- 

3  Cloud  V.  Smith,  1  Texas,  611.  In  lary  attacliment,  taken  out  in,  and  in  aid 
Alabama,  it  was  at  one  time  held  that  of,  a  suit  already  instituted  by  summons, 
the  allegations  of  the  affiilavit  were  trav-  ■*  Lenox  v.   Howland,   3  Caines,  323. 

ersable,  and  might  be  investigated  and     See  Orton  v.  Noonan,  27  Wisconsin,  572. 
decided  by  a  jury.     Brown  v.  Massey,  3 
[328] 


CHAP.  XV.]   AND  THE  MEANS  OF  DEFEATING  THEM. 


401 


sedeas  was  awarded,  upon  the  relation  of  the  defendant,  showing 
that  he  had  not  departed  the  State,  but  had  openly  made  a  jour- 
ney within  it.i  So,  where,  from  the  evidence  given  by  the 
defendants,  it  appeared  that  they  had  not  absconded,  and  were 
not  concealed,  at  the  time  the  petition  for  an  attachment  was 
presented.2 

In  this  State,  since  the  adoption  of  the  Code  of  Procedure,  the 
courts  have  asserted  their  inherent  right  to  control  their  own 
process,  and  to  inquire  into  the  grounds  upon  which  it  has 
issued,  and  to  receive  proofs  in  relation  thereto,  on  special  mo- 
tion, though  the  Code  gives  no  authority  for  such  a  proceeding.^ 

On  such  a  motion  the  defendant  may  introduce  afl&davits 
against,  and  the  plaintiff  supplemental  affidavits  in  support  of, 
the  ground  of  attachment  sworn  to  in  the  first  instance  ;  and  if 
by  all  the  affidavits  sufficient  appears  to  warrant  the  issuing  of 
the  attachment,  the  court  will  not  set  it  aside  for  any  insufficiency 
in  the  affidavit  on  which  it  issued.'* 

A  motion  to  vacate  an  attachment  because  the  ground  upon 
which  it  was  issued  was  not  true,  must,  in  that  State,  be  made  at 
the  first  opportunity,  or  an  excuse  be  shown  for  not  so  making  it. 
It  comes  too  late  after  judgment.^  But  where  it  was  made  be- 
fore judgment,  and  was  referred  by  the  court  to  a  referee  to  hear 
the  proofs,  and  report  his  opinion  thereon,  and  before  his  report 
was  made  judgment  was  entered,  it  was  held,  that  the  motion 
might  be  heard  and  passed  upon  after  the  entry  of  the  judg- 
ment.^ 

§  401.  In  Pennsylvania,  it  was  early  held,  that  the  court 
would  make  inquiry  in  attachment  cases  into  the  plaintiff's  cause 
of  action,  as  in  cases  of  capias^  and  where  a  sufficient  cause  did 
not  appear,  would  dissolve  the  attachment.^  This  right  of  in- 
quiry in  such  cases  is  now  firmly  established  in  that  State,  and 
the  practice  has  been  regulated  by  several  reported  decisions.^ 

1  Ex  parte  Cliipman,  1  Wendell,  66.  444.     See  Foster  v.  Dryfus,  16  Indiana, 

2  Matter  of  W^arner,  3  Wendell,  424.  158. 

3  Morgan  y.  Avery,  7  Barbour,  656;  ^  Thompsons. Culver,  15 Abbott Pract. 
Genin  v.  Tompkins,  12  Ibid.  265.  97  ;  38  Barbour,  442  ;  24  Howard  Pract. 

4  Canimann  v.  Tompkins,  1  Code  Re-  286. 

ports,  12;  St.  Amant  v.  De  Beixcedon,  3  ''  Vienne  v.  McCarty,  1  Dallas,  165. 

Sandford  Sup.  Ct.  703.  ^  Vienne  v.  McCarty,  1   Dallas,   165, 

5  Lawrence  v.  Jones,  15  Abbott  Pract.  note  a.  See  Ferris  v.  Carlton,  8  Phila- 
110:  Swezey   v.  Bartlett,   3   Ibid.  n.   s.  delphia,  549. 

[329] 


§  404  ATTACHMENTS   TMPROVIDENTLY   ISSUED,      [CHAP.  XV. 

It  is  tlie  practice  there,  too,  to  allow  the  defendant  in  a  domestic 
attachment  to  show  by  affidavits  that  he  had  not  absconded,  as 
alleged,  and  upon  the  same  being  satisfactorily  shown,  to  dissolve 
the  attachment.  In  a  case  of  this  description,  the  court  said, 
"  The  affidavit  on  which  a  domestic  attachment  is  grounded,  has 
never  been  held  to  be  conclusive  ;  such  a  doctrine  would  be  at- 
tended with  the  most  pernicious  consequences  ;  "  and  intimated 
that  the  plaintiff  might  sustain  his  affidavit  by  contrary  proofs  to 
those  presented  by  the  defendant.^ 

§  402.  In  New  Jersey,  the  power  and  duty  of  the  court  to 
inquire  into  the  misuse  and  abuse  of  this  process,  was  declared 
to  rest  on  the  most  ancient  and  established  principles,  and  to 
be  as  applicable  to  writs  of  attachment  as  to  any  other  process. 
There  the  truth  of  the  allegations  on  which  the  writ  issues  is 
brought  up  on  motion  to  dissolve  the  attachment,  sustained  by 
affidavits.^ 

§  403.  In  Maryland,  it  was  decided,  that  every  fact  is  cogniza- 
ble by  the  court,  which  would  show  that  the  attachment  issued 
improvidently ;  and  evidence  dehors  the  proceedings  might  be  re- 
sorted to,  and  proof  made  to  the  court ;  ^  either  under  a  motion  to 
quash  or  under  a  plea.* 

§  404.  In  South  Carolina,  the  defendant  may  contest  the  alle- 
gations in  the  affidavit,  and  if  successful  in  disproving  them,  the 
attachment  will  be  dissolved.  As  to  the  mode  of  accomplishing 
this,  the  decisions  appear  not  to  be  quite  consistent.  In  a  case 
of  domestic  attachment,  it  was  held,  that  "  a  shorthand  method  of 
quashing  by  motion  "  was  inadmissible.^  Afterwards,  in  a  case  of 
foreign  attachment,  this  course  was  allowed ;  ^  though  in  a  sub- 
sequent case  it  was  considered  that,  whatever  may  have  been  the 
practice,  a  judge  ought,  in  a  doubtful  case,  to  refuse  a  motion  to 

1  Boyes  v.  Coppinger,  1  Yeates,  277.  *  Lambden  v.  Bowie,  2  Maryland,  334 ; 

2  Branson  v.  Shinn,  1  Green,  250 ;  Cover  v.  Barnes,  15  Ibid.  576 ;  Hardesty 
City  Bank  i-.  Merrit,  Ibid.  131 ;  Day  v.     v.  Campbell,  29  Ibid.  533. 

Bennett,  3  Harrison,  287  ;  Shadduck  v.  ^  Havis  v.  Trapp,  2  Nott  &  McCord, 

Marsh,  1  Zabriskie,  434;  Phillipsburgh  130. 

Bank  y.  Lackawanna  R.R.  Co.,  3D  utcher,  «  Wheeler  v.  Degnan,  2  Nott  &  Mc- 

206.  Cord,  323. 

3  Campbell  v.  Morris,  3  Harris  &  Mc- 
Henry,  535. 

[330] 


CHAP.  XV.]  AND  THE  MEANS  OF  DEFEATING  THEM.     §  406  a 

quash  an  attachment  by  an  affidavit ;  and  the  propriet}'  of  a  plea 
in  abatement,  and  a  trial  of  the  issue  by  a  jury,  was  recognized.^ 

§  405.  In  Tennessee,^  Kentucky,^  Indiana,*  and  Illinois,^  it  is 
held,  that  the  defendant  may  plead  in  abatement,  traversing  the 
allegations  of  the  affidavit. 

§  406.  The  preceding  sections  show  the  views  of  this  subject 
entertained  by  the  courts  of  the  several  States  in  which  it  has 
been  considered,  unconnected  with  statutory  provisions.  Before 
proceeding  to  refer  to  such  provisions  in  other  States,  and  the  de- 
cisions thereunder,  it  should  be  remarked,  that  in  whatever  mode 
a  contest  of  the  truth  of  the  affidavit  may  be  allowed,  it  should 
precede  the  defendant's  appearance  and  plea  to  the  action.  If  he 
have  already  pleaded  to  the  action,  or  do  so  at  the  same  time 
that  he  pleads  to  the  affidavit,  or  afterwards,  he  cannot  contro- 
vert the  affidavit.^  And  in  no  case  wall  he  be  allowed  to  give 
evidence  to  contradict  the  affidavit,  unless  he  have  pleaded  to  it 
in  abatement,  where  that  is  the  mode  of  contesting  it.''  And 
in  Illinois,  applying  the  common-law  rule  in  regard  to  pleas  in 
abatement,  it  was  held,  that  this  plea  could  not  be  filed  after  a 
continuance.^ 

§  406  a.  Where  an  attachment  has  been  vacated  by  the  court, 
after  an  inquiry  into  the  merits  of  the  ground  upon  which  it  was 
issued,  another  attachment  by  the  same  party,  on  the  same 
ground,  where  no  new  facts  are  presented,  cannot  be  sustained. 
"  The  defendant  is  not  to  be  continually  vexed  by  the  same  ap- 
plication ;  nor  are  the  same  or  different  tribunals  to  hear  and 
decide  upon  the  same  matters  more  than  once."  ^ 

1  Shrewsbury  v.  Pearson,  1  McCord,  *  Bates  v.  Jenkins,  1  Illinois  (Breese), 
331.  Appendix,  25. 

2  Harris  v.  Taylor,  3  Sneed,  536 ;  «  Meggs  v.  ShaflPer,  Hardin,  65 ;  Linds- 
Isaacks  v.  Edwards,  7  Humphreys,  465;  ley  v.  Malone,  23  Penn.  State,  24;  Hatry 
Dunn  I'.  Myres,  3  Yerger,  414.  v.   Sliuman,    13  Missouri,   547  ;    Cannon 

3  Meggs  V.  Shaffer,  Hardin,  65 ;  Moore  v.  McManus,  17  Ibid.  345 ;  Collins  v. 
V.  Hawkins,  6  Dana,  289 ;  Lovier  v.  Gil-  Nichols,  7  Indiana,  447.  Sed  contra, 
pin,  Ibid.  321.  Hawkins  v.  Albright,  70  Illinois,  87. 

*  Voorhees  v.  Hoagland,  6  Blackford,  ^  Moore  v.  Hawkins,  6  Dana,  289. 

232;   Abbott  v.   Warriner,  7   Ibid.  573;  ®  Archer  y.  Claflin,  31  Illinois,  306. 

Excelsior  Fork  Co.  v.  Lukens,  38  Indiana,  ^  Schlemmer  v.  Myerstein,  19  Howard 

438.  Pract.  412. 

[331] 


§  409  ATTACHMENTS   IMPROVIDENTLY   ISSUED,      [CHAP.  XV. 

§  407.  A  plea  in  abatement,  where  allowed,  must  directly  and 
fully  negative  the  allegations  of  the  affidavit.  Thus,  where  the 
affidavit  stated  that  the  defendant  "  was  removing  and  about  to 
remove  his  property  from  the  State,"  and  the  defendant  pleaded 
that  ''  he  was  not  removing  from  the  State,  nor  was  he  removing 
his  property  from  the  State,"  it  was,  on  demurrer,  considered  to 
be  no  answer  to  the  affidavit.^  But,  where  an  affidavit  contained 
several  grounds  of  attachment,  a  general  denial  of  the  existence 
of  any  of  the  facts  alleged  was  held  sufficient.^ 

§  408.  In  Louisiana,  the  Code  of  Practice  provides  that  the 
defendant  may  prove  in  a  summary  way,  after  having  given  due 
notice  in  writing  to  the  adverse  party,  that  the  allegations  on 
which  the  order  for  attachment  had  been  obtained,  were  false ; 
in  which  case  the  attachment  will  be  dissolved.^  And  it  is  not 
necessary  that  such  a  defence  should  be  set  up  by  plea  or  excep- 
tion.^ It  is  considered  there,  that  the  affidavit  has  a  greater 
effect  than  merely  enabling  the  party  to  obtain  process  against 
the  defendant,  and  that  in  making  proof  under  such  a  defence, 
the  defendant  must  show  sufficient  to  throw  the  burden  of  proof 
on  the  plaintiff ;  ^  and  in  a  case  where  the  evidence  on  behalf  of 
the  defendant  effected  no  more  than  merely  making  the  matter 
doubtful,  it  was  held  that  the  attachment  should  not  be  dis- 
solved.^ In  Nebraska,  however,  when  the  cause  of  attachment  is 
denied  by  the  defendant,  the  burden  of  proof  is  thrown  upon  the 
plaintiff,  and  if  nothing  appear  to  authorize  greater  credit  to  be 
given  to  his  statements  than  to  those  of  the  defendant,  the  attach- 
ment will  be  discharged."  In  Ohio,  too,  a  denial  by  the  defend- 
ant of  the  ground  of  attachment,  throws  the  burden  of  proof  on 
the  plaintiff.^ 

§  409.  In  Missouri,  the  right  conferred  upon  the  defendant  by 
statute,  to  contest  the  truth  of  the  plaintiff's  affidavit,  by  a  plea 
"in  the  nature  of  a  plea  in  abatement,"  has  given  rise  to  a  num- 

1  White  V.  Wilson,  10  Illinois  (5  Gil-  ^  Brumgard  y.  Anderson,  16  Louisiana, 

man),  21.  341 ;  Offut  v.  Edwards,  9  Robinson  (La.), 

'^  Armstrong  v.  Blodgett,   33  Wiscon-  90 ;  Simons  v.  Jacobs,  15  Louisiana  An- 

sin,  284.  nual,  425. 

8  Louisiana  Code  of  Practice,  Art.  258.  '^  Moore  v.  Angiolette,  12  Martin,  532. 

*  Read  v.  Ware,  2  Louisiana  Annual,  7  Ellison  v.  Tallon,  2  Nebraska,  14. 

498.  8  Coston  v.  Paige,  9  Ohio  State,  397. 

[332] 


CHAP.  XV.]   AND  THE  MEANS  OF  DEFEATING  THEM. 


409 


ber  of  adjudications.     The  language  of  the  statute  is  as  follows : 
"  In  all  cases  where  property  or  effects  shall  be  attached,  the 
defendant  may  file  a  plea,  in  the  nature  of  a  plea  in  abatement, 
without  oath,  putting  in  issue  the  truth  of  the  facts  alleged  in 
the  affidavit,  on  which  the  attachment  was  sued  out.     Upon  such 
issue,  the  plaintiff  shall  be  held  to  prove  the  existence  of  tlie  facts 
alleged  by  him,  as  the  ground  of  the  attachment ;  and  if  the  issue 
be  found  for  him,  the  cause  shall  proceed ;  but  if  it  be  found  for 
the  defendant,  the  suit  shall  be  dismissed  at  the  costs  of  the  plain- 
tiff." 1     In  order  to  see  the  force  of  some  of  the  cases  to  be  cited 
from  the  Reports  of  this  State,  it  is  necessary  to  mention  here, 
that  the  affidavit  for  an  attachment  must  state  that  the  affiant 
"  has  good  reason  to  believe,  and  does  believe  "  the  facts  alleged 
as  a  ground  for  obtaining  the  attachment.     The  plea  authorized 
by  the  statute,  being  therein  designated  as  "  in  the  nature  "  of  a 
plea  in  abatement,  was  at  one  time  held  to  be  in  fact  such  a  plea, 
and  to  be  governed  by  the  same  principles,  subject  to  the  same 
rules,  and  liable  to  the  same  consequences  as  a  plea  in  abate- 
ment ;2  and  therefore  not  amendable  after  demurrer  ;3  but  after- 
wards this  position  was  abandoned,  and  the  plea  held  to  be  not 
strictly  within  the  rules  of  pleading  at  common  law  applicable  to 
pleas  in  abatement,  and  that  it  might  be  amended.     Therefore, 
where  the  affidavit  alleged  that  "the  defendant  has  absented  him- 
self from  his  usual  place  of  abode  in  the  State  of  Missouri,  so  that 
the  ordinary  process  of  law  cannot  be  served  upon  him,"  and  the 
defendant  filed  a  plea  saying  that  "  at  the  time  stated  in  the  affi- 
davit, he  had  not  absented  himself  from  his  usual  place  of  abode 
in  this  State,  so  that  the  ordinary  process  of  law  could  be  served 
upon  him  ;  "  and  the  plaintiff  demurred  to  the  plea  ;  and  the  de- 
fendant asked  leave  to  amend  by  inserting  the  word  '^  not"  after 
the  word  "  could  ;  "  it  was  held,  that  he  was  entitled  to  make  the 
amendment.*     If,  after  filing  such  a  plea,  the  defendant  j)lead  to 
the  merits  of  the  action,  it  is  a  waiver  of  the  plea  in  abatement.^ 
Where  time  has  elapsed  between  the  date  of  the  affidavit  and  the 

1  Revised  Statutes  of  Missouri  of  1845,  *  Cayce    r.    Ragsdale,    17    Missouri, 
pp.  139,  140.                                                      32. 

2  Livengood    v.    Shaw,    10    Missouri,  °  Hatry  v.  Sliuman,  13  Missouri,  547 ; 
273;  Hatry  v.  Sliuman,  13  Ibid.  547.             Cannon  v.  McManus,  17  Ibid.  345. 

3  Livengood    v.   Shaw,   10    Missouri, 
273. 

[333] 


§  400  ATTACHMENTS   IMPROVTDENTLY   ISSUED,      [CHAP.  XV. 

issue  of  the  writ,  this  plea  puts  in  issue  the  truth  of  the  facts 
alleged  at  the  time  the  writ  was  obtained.^  This  mode  of  contest- 
ing the  truth  of  the  facts  sworn  to,  being  provided  by  the  statute, 
that  question  cannot  be  investigated  on  a  motion.^  And  after 
the  filing  of  a  plea  in  abatement,  it  is  not  competent  for  the  plain- 
tiff to  dissolve  his  attachment,  and  carry  on  his  action  as  if  it  had 
been  conmienced  by  summons  ;  for  the  statute  gives  the  defend- 
ant the  right  to  try  the  truth  of  the  affidavit,  and  if  the  issue  be 
found  for  him,  to  have  the  suit  dismissed.^  This  plea  does  not 
put  in  issue  the  belief  of  the  person  making  the  affidavit,  nor  the 
goodness  of  the  reasons  for  his  belief,  but  the  truth  of  the  facts 
charged.^  Nor  can  the  intentions  of  the  defendant  be  inquired 
into  under  it,  except  in  those  cases  in  which  the  statute  contem- 
plates such  an  investigation.  Therefore,  where  the  affidavit 
averred  that  the  defendant  had  absconded  or  absented  herself 
from  her  usual  place  of  abode,  so  that  the  ordinary  process  of  law 
could  not  be  served  upon  her ;  and  it  was  shown  on  the  trial  that 
her  conduct  had  been  of  a  character  which  might  well  induce  the 
belief  that  she  had  absconded  at  the  time  the  writ  issued  ;  it  was 
held,  that  the  court  did  right  in  refusing  so  to  instruct  the  jury 
as  to  place  before  them  the  question  as  to  the  intentions  of  the 
defendant,  and  in  instructing  them  that  the  only  matter  for  their 
determination  was,  whether,  at  the  time  of  the  making  of  the  affi- 
davit, the  defendant  actually  had  absconded  or  absented  herself, 
as  charged.^  Under  this  plea  the  defendant  cannot  take  ad- 
vantage of  a  misnomer.  Elisha  Swan  and  Nelson  Deming  were 
sued,  and  traversed  the  allegation  that  they  were  non-residents, 
and  attempted  to  give  in  evidence  that  Deming's  name  was  not 
"  Nelson,"  but  "  Anson  L.  ;  "  but  it  was  held  to  be  inadmissible.^ 
Upon  a  trial  of  an  issue  under  such  a  plea,  it  was  held,  that  evi- 
dence that  the  defendant  was  largely  indebted  to  others  besides 
the  plaintiff  was  immaterial."  Where  three  grounds  of  attach- 
ment were  alleged,  and  the  defendant  pleaded  in  abatement  to 
two  of  them  only,  it  was  held,  that  the  omission  to  plead  to  the 
third  ground  was  not  an  admission  of  its  truth.^ 

1  Graham  v.  Bradbury,   7    Missouri,  438  ;  Dider  v.  Courtney,  7  Ibid.  500.    See 

281.  Oaborn  v.  Schiffer,  37  Texas,  434. 

'^  Graham  v.   Bradbury,   7    Missouri,  ^  Temple  v.  Cochran,  13  Missouri,  116. 

281 ;  Searcy  v.  Phitte  County,  10  Ibid.  269.  6  Swan  v.  O'Fallon,  7  Missouri,  231. 

8  Mense  v.  Osbern,  6  Missouri,  644.  ^  Switzer  v.  Carson,  9  Missouri,  740. 

*  Chenault  v.   Chapron,   5    Missouri,  8  Kritzer  v.  Smith,  21  Missouri,  296. 

[334] 


CHAP.  XV.]      AND   THE   MEANS   OF  DEFEATHSTG  THEM.  §  410 

§  410.  Where  two  several  grouuds  are  stated  in  the  affidavit 
for  the  attachment,  and  a  plea  in  abatement  is  filed  to  the  affi- 
davit, it  is  not  necessary  that  both  grounds  should  beproved, 
but  the  proving  of  either  will  be  sufficient  to  sustain  the 
attachment.^ 

1  Tucker  v.  Frederick,  28  Missouri,  574. 

[335] 


§  414  DISSOI-UTION   OF   AN   ATTACHMENT.       [CHAP.  XVI. 


CHAPTER    XVI. 

DISSOLUTION   OF   AN   ATTACHMENT. 

§  411.  The  dissolution  of  an  attachment  discharges  from  its 
lien  the  property  attached,  whether  levied  on,  or  subjected  in  the 
hands  of  garnishees ;  and  it  has  been  held,  that  a  legislative  act 
Avhich  should  undertake  to  restore  an  attachment  already  dis- 
solved, would  be  unconstitutional  and  void  as  against  a  purchaser 
of  the  property  after  the  dissolution.^  A  dissolution  may  be 
produced  by  various  causes,  which  will  now  be  considered. 

§  412.  The  existence  and  operation  of  an  attachment  can  con- 
tinue no  longer  than  the  statute  authorizing  it.  If,  during  the 
progress  of  a  suit  by  attachment,  the  law  be  repealed,  without 
authorizing  the  continued  prosecution  of  pending  suits,  there  can 
be  no  further  proceeding,  and  the  attachment  is  thereby  dis- 
solved.^ 

§  413.  Obviously,  a  final  judgment  for  the  defendant  dissolves 
an  attachment.^ 

§  414.  Defects  in  the  plaintiff's  proceedings  may  be  equally 
fatal,  unless  remediable  by  amendment.  They  are  usually  found 
in  the  affidavit  or  the  bond ;  and  the  ordinary  way  to  take  ad- 
vantage of  them  is  by  a  motion  to  dissolve,  set  aside,  or  quash 
the  attachment.  Every  attempt  to  overturn  an  attachment  in 
this  way  must  precede  plea  to  the  merits  ;  for  by  such  plea  the 
defendant  is  considered  to  waive  all  exceptions  to  such  defects ;  ^ 

1  Ridlon  V.  Cressey,  65  Maine,  128.  &  Battle,  502  ;  Stoney  v.  McNeill,  Harper, 

2  Stephenson  v.  Doe,  8  Blackford,  508.  166;  Young  v.  Grey,  Ibid.  38;  Watson  v. 

3  Clapp  y.  Bell,  4  Mass.  99;  Johnson  McAllister,  7  Martin,  368;  Enders  v. 
V.  Edson,  2  Aikens,  299;  Suydam  v.  Steamer  Henry  Clay,  8  Robinson  (La.), 
Huggeford,  23  Pick.  465 ;  Brown  d.  Har-  30;  Symons  v.  Northern,  4  Jones,  241 ; 
ris,  2  G.  Greene,  605;  Harrow  ?;.  Lyon,  Judah  v.  Duncan,  2  Bailey,  454;  Gill  v. 
8  Ibid.  157.  Downs,  26  Alabama,  670;  Memphis  R. 

*  Garmon  v.  Barringer,  2  Devereux     R.  Co.  v.  Wilcox,  48  Penn.  State,  161. 
[336] 


CHAP.  XVI.]        DISSOLUTION   OF   AN   ATTACHMENT.  §  415 

and  the  court  can  make  no  order  quashing  the  attachment,  which 
can  interfere  with  the  trial  of  the  issues  made  by  the  pleadings.^ 
When  the  defendant  appears  and-  moves  to  dissolve  the  attach- 
ment, it  is  held,  in  Missouri,  to  be  such  an  appearance  to  the 
action  as  will  authorize  a  judgment  by  default  against  him,  if  he 
fails  to  plead  to  the  merits,  whether  he  was  served  with  process 
or  not ;  ^  but  not  so  in  Louisiana  or  Illinois,  if  he  was  not  so 
served.3  In  the  last-named  State,  an  appearance  by  a  defendant 
not  served  with  process,  to  move  to  set  aside  a  judgment  by  de- 
fault against  him,  is  held  not  to  be  a  general  appearance,  author- 
izing a  personal  judgment  against  him.* 

§  415.  Every  motion  to  dissolve,  set  aside,  or  quash  an  attach- 
ment is  based  on  defects  apparent  on  the  face  of  the  proceedings, 
and  nothing  will  be  considered  on  the  hearing  of  such  a  motion, 
but  what  is  thus  apparent.^  The  motion  must  specify  the  grounds 
upon  which  it  is  made.  It  is  not  sufficient  to  say  that  it  is  made 
"  because  the  writ  was  improperly  issued  ;  "  there  must  be  a 
statement  of  the  points  of  objection  upon  which  the  moving 
party  will  rely.^  If  there  is  any  intrinsic  defect  in  the  proceed- 
ings, not  discernible  on  their  face,  it  cannot  be  brought  before 
the  court  on  a  motion  of  this  description,  but  must  be  reached 
in  some  other  mode.  For  example,  an  attachment  bond  is  exe- 
cuted in  the  name  of  the  plaintiff,  by  an  attorney  in  fact.  The 
attorney  may  have  had  sufficient  authority,  or  he  may  not ;  but 
whether  or  not,  the  court  will  not  inquire  into  that  fact  on  a  mo- 
tion to  dissolve.  The  scrutiny  will  not  extend  beyond  the  rec- 
ord ;  and  if  there  is  a  bond  there,  though  it  may  in  fact  have 
been  executed  without  any  valid  authority,  it  is  sufficient  pro 
hac  vice  to  sustain  the  attachment.^  So  where  an  attachment  is 
taken  out  by  a  corporation,  the  court  will  not,  on  such  a  motion, 

1  Carr  v.  Coopwood,  24  Mississippi,  53;   Wright  v.   Smith,   19  Texas,   207; 
256.  Hill  V.  Cunningham,  25  Ibid.  25. 

2  Whiting  V.  Budd,  5  Missouri,  443 ;  **  Freeborn   v.    Glazer,   10   California, 
Evans  v.  King,  7  Ibid.  411.  337. 

3  Bonner  v.  Brown,  10  Louisiana,  334;  ^  Lindner  v.  Aaron,  5  Howard  (Ml.), 
Johnson  v.  Buell,  26  IlUnois,  66.  581  ;  Spear  v.  King,  6   Smedes  &  Mar- 

4  Kiemm  v.  Dewes,  28  Illinois,  317;  shall,   276;  Jackson   v.   Stanley,   2  Ala- 
Jones  y.  By  rd,  74  Ibid.  115.  bama,   326;  Lowry   v.   Stowe,  7  Porter, 

5  Baldwin    v.   Conger,   9    Smedes    &  483  ;  Calhoun  v.  Cozzens,  3  Alabama,  21 ; 
Marshall,  616 ;  Hill  v.  Bond,  22  Howard  Goddard  v.  Cunningham,  6  Iowa,  400. 


Pract.  272;  Cooper  r.  Reeves,  13  Indiana, 


22  [337] 


§  417  DISSOLUTION    OF    AN    ATTACHMENT.       [CHAP.  XVI. 

allow  the  defendant  to  show  that  the  corporation  had  no  power 
under  its  charter  to  execute  the  bond.^ 

In  Pennsylvania,  however,  on  a  rule  to  show  cause  why  an 
attachment  should  not  be  set  aside,  the  defendant  was  allowed  to 
show  that  the  plaintiff  had  obtained  judgment  in  another  State 
on  the  same  demand,  and  levied  execution  there ;  and  the  attach- 
ment was  quashed.2  But  it  was  not  regarded  as  any  objection  to 
an  attachment,  that  the  plaintiff  had  sued  out  an  attachment  in 
another  State  for  the  same  cause  of  action,  unless,  perhaps,  the 
defendant  had  there  given  bail.^  But  the  pendency  of  another 
suit  by  attachment  in  the  same  State,  for  the  same  cause  of  ac- 
tion, was,  in  Mississippi,  held  to  be  good  in  abatement.* 

§  41G.  A  misrecital,  in  the  writ,  of  the  court  to  which  it  is  re- 
turnable, is  no  ground  for  dissolving  an  attachment,  where  the 
nature  and  character  of  the  writ  show  that  it  could  be  returnable 
only  in  a  particular  court ;  ^  much  less,  where  the  writ  is  actually 
returned  into  the  proper  court.*"  And  where  the  practice  was  to 
recite  in  the  writ  the  grounds  of  attachment  set  forth  in  the  affi- 
davit ;  and  an  affidavit  alleged  that  the  defendant  "  so  absconds 
or  conceals  himself  that  the  ordinary  process  of  law  cannot  be 
served  on  him ; "  and  the  writ  recited  that  oath  had  been  made 
that  the  defendant  "  hath  removed,  or  is  about  to  remove  him- 
self out  of  the  county,  or  so  absconds  or  conceals  himself  that 
the  ordinary  process  of  law  cannot  be  served  upon  him  ;  "  it  was 
held,  that  the  writ  did  not  follow  the  terms  of  the  affidavit,  and 
left  it  uncertain  as  to  the  ground  of  the  proceeding,  and  it  was 
quashed.'  A  contrary  doctrine,  however,  was  maintained  in 
Mississippi,  where  it  was  held,  that  such  a  misrecital  would  not 
vitiate  the  attachment,  if  the  record  showed  that  the  proper 
averment  was  made  in  the  affidavit.^ 

§  417.  The  issue  of  an  attachment  on  Sunday  is  at  common 
law  an  irregularity,  which,  if  appearing  on  the  face  of  the  writ, 

1  Bank  of  Augusta  v.  Conrey,  28  Mis-  shall,  441 ;  Wharton  v.  Conger,  9  Ibid. 
sissippi,  667.  610. 

2  Downing  v.  Pliillips,  4  Yeates,  274.  '^  Blake  v.  Camp,  45  Georgia,  298. 

3  Fisher  v.   Consequa,  2  Washington  ''  Woodley  v.  Shirley,  Minor,  14. 

C.  C.  382  ;  Clark  v.  Wilson,  3  Ibid.  560.  »  Lovelady   v.   Harkins,  6    Smedes  & 

4  James  v.  Dowell,  7  Smedes  &  Mar-  Marshall,  412 ;  Clanton  v.  Laird,  12  Ibid, 
shall,  333.  568 ;  McClanahan   v.  Brack,   46   Missis- 

s  Byrd  v.  Hopkins,  8  Smedes  &  Mar-     sippi,  246. 
[338] 


CHAP.  XVI.]        DISSOLUTION   OF   AN   ATTACHMENT.  §  419 

will  justify  the  quashing  of  it.  But  if  it  do  not  so  appear,  the 
court,  loliere  the  act  of  the  clerk  is  judicial,  and  not  merely  minis- 
terial, cannot  order  the  clerk  to  alter  the  date  of  the  writ,  so  as 
to  make  it  show  that  it  was  issued  on  Sunday,  and  then  quash  it.^ 

§  418.  It  is  not  admissible  for  the  defendant,  in  order  to  dis- 
solve an  attachment  on  motion,  to  show  that  the  debt  was  not 
due  ;  2  or  that  the  amount  claimed  by  the  plaintiff  is  unconscion- 
able or  unreasonable ;  ^  nor  upon  such  a  motion  can  the  nature, 
validity,  or  justice  of  the  cause  of  action  sued  on  be  inquired 
into.*  This  would  be  to  try  in  a  summary  and  collateral  way  the 
main  issue  in  the  cause.  Nor  can  he  move  to  discharge  the  at- 
tachment on  the  ground  that  the  property  attached  did  not  belong 
to  him ;  °  nor  because  one  of  several  counts  in  the  declaration 
sets  up  an  illegal  and  void  cause  of  action,  while  the  other  counts 
are  legal ;  ^  nor  because  the  cause  of  action  is  improperly  or  de- 
fectively stated  in  the  complaint."  Nor  is  it  admissible  for  the 
court,  upon  the  trial,  to  dissolve  the  attachment  because  the 
plaintiff  is  found  to  be  not  entitled  to  recover  an  amount  equal 
to  that  sworn  to  in  the  affidavit  on  which  the  attachment  issued.^ 
But  if  under  a  system  of  pleading  where  a  complaint  takes  the 
place  of  a  declaration,  the  complaint  does  not  state  a  cause  of 
action,  and  is  incurable  by  amendment,  the  attachment  may  be 
dissolved  on  motion.  If,  however,  the  complaint  can  be  made 
good  by  amendment,  the  plaintiff  should  be  allowed  to  amend 
before  the  decision  of  the  motion  to  dissolve.^ 

§  418  a.  In  Alabama,  the  practice  is  to  allow  an  amicus  curioi 
to  move  to  quash  an  attachment  for  irregularities  •,'^^  but  I  have 
not  noticed  the  existence  of  such  a  practice  in  any  other  State. 

§  419.  The  question  whether  one  not  a  party  to  the  record,  but 
who  has  an  interest  in  the  attached  property,  can  make  a  motion 

1  Matthews  v.  Ansley,  31  Alabama,  20.  ^  Wilson  v.  Danforth,  47  Georgia,  676. 

2  Fisher  v.  Taylor,  2  Martin,  79,  113;  ^  Cope  v.  U.  M.  M.  &  P.  Co.,  1  Mon- 
Sniith   V.  Elliott,   3  Ibid.   366;  Reiss  v.     tana,  53. 

Bratly,  2  California,  132.  ^  Brown  v.  Ainsworth,  32  Georgia,  487. 

3  Lord  V.  Gaddis,  6  Iowa,  57.  9  Hathaway   v.  Davis,  33  California, 
*  Alexander  i;.  Brown,  2  Disney,  395;     161. 

Miller  v.  Chandler,  29  Louisiana  Annual,  ^  Planters  and  Merchants'  Bank  v. 
88.  Andrews,  8  Porter,  404. 

5  Langdon  v.  Conklin,  10  Ohio  State, 
439 ;  Mitchell  v.  Skinner,  17  Kansas,  563. 

[339] 


§  422  DISSOLUTION  OF   AN   ATTACHMENT.      [CHAP.  XVI. 

to  quash  the  attachment,  arose  in  Alabama,  where  it  was  held, 
that  a  mortgagee,  whose  lien  was  acquired  after  the  levy  of  the 
attachment,  could  not  make  such  motion  for  defects  apparent  in 
the  record ;  ^  and  much  less  for  matters  dehors  the  record.^  But 
in  Texas  it  was  decided  that  the  sureties  in  a  delivery  bond  sus- 
tain such  a  relation  to  the  action  as  to  authorize  them  to  move 
to  quash  the  attachment.^ 

§  420.  The  entertainment  of  a  motion  to  quash  or  dissolve  an 
attachment  for  irregularities  in  the  proceedings  is  within  the  dis- 
cretion of  the  court,  and  a  refusal  by  the  court  to  entertain  it 
will  not  be  controlled  by  mandamus,^  or  revised  on  error.°  Nor 
will  the  decision  of  the  court  overruling  such  a  motion  be  so 
revised.^  But  where  the  judgment  of  a  court  quashing  an  at- 
tachment has  been  had  in  this  summary  mode,  its  correctness 
may  be  examined  on  error ; ''  but  not  unless  the  reasons  for  its 
action  are  spread  upon  the  record,  or  preserved  in  a  bill  of  ex- 
ceptions.^ Where,  however,  the  objection  to  the  attachment  is 
not  on  the  ground  of  irregularity,  but  because  it  was  sued  out 
upon  a  cause  of  action  not  contemplated  by  the  statute,  the 
court  in  which  the  action  is  pending  should  dismiss  the  suit ;  ^ 
and  if  it  do  not,  the  appellate  court  will  review  its  action,  and 
itself  exercise  the  remedy.^*^ 

§  421.  The  refusal  of  the  court  in  which  the  attachment  was 
brought,  to  dissolve  it  on  motion,  does  not  preclude  its  doing  so 
at  the  final  hearing. ^^ 

§  422.  In  this  connection  may  properly  be  considered  the  ef- 
fect of  the  death  of  the  defendant  upon  an  attachment.  The 
decisions  on  this  subject  are  few,  and  mostly  so  connected  with 

1  May  V.  Courtnay,  47  Alabama,  185.  Ellison  v.  Mounts,  12  Ibid.  472;  Gill  v. 

2  Cockrell  v.  McGraw,  33  Alabama,  Downs,  22  Ibid.  670 ;  Miller  v.  Spreelier, 
526.  2  Yeates,   162;  Brown  v.   Ridgway,   10 

3  Burch  V.  Watts,  37  Texas,  135.  Penn.   State,  42;  Lindsley  v.  Malone,  23 

4  Expai-te  Putnam,  20  Alabama,  592.  Ibid.  24. 

5  Reynolds   v.  Bell,   3  Alabama,  57 ;  '^  Reynolds  v.  Bell,  3  Alabama,  57. 
Massey  v.  Walker,  8  Ibid.  167;  Ellison  v.  »  Cobb  v.   O'Neal,  1   Howard   (Mi.), 
Mounts,  12  Ibid.  472;  Hudson  ?;.  Daily,  581;  Freeborn  v.  Glazer,   10  California, 
13  Ibid.  722;  Gee  v.  Alabama  L.  I.  &  T.  337. 

Co.,  Ibid.  579 ;  Gill  v.  Downs,  26  Ibid.  9  Elliott  v.  Jackson,  3  Wisconsin,  649. 

070.  1"  GrJswold  v.  Sharpe,  2  California,  17. 

6  Massey  v.  Walker,  8  Alabama,  167  ;        ^^  Talbot  v.  Pierce,  14  B.  Monroe,  195. 

[340] 


CHAP.  XYI.]        DISSOLUTION   OF   AN   ATTACHJVEENT.  §  422 

local  statutes  as  to  have  little  general  applicability.  Of  this  de- 
scription are  the  reported  cases  in  Maine  and  Massachusetts.  In 
a  case  in  the  latter  State,  where  the  eifect  of  the  defendant's 
bankruptcy  after  the  levy  of  an  attachment  was  under  consider-  * 
ation,  Shaw,  C.  J.,  in  delivering  the  opinion  of  the  court,  used 
the  following  language :  "  As  a  question  of  policy  and  expedi- 
ency, we  are  inclined  to  the  opinion  that  when  it  becomes  neces- 
sary to  settle  and  close  up  the  affairs  of  a  debtor,  whether  at 
his  decease  or  during  his  life,  true  equity  would  require  that  all  his 
property,  which  has  not  become  appropriated  and  vested  by  his 
own  act  or  the  operation  of  law,  should  be  applied  to  the  payment 
of  all  his  debts,  and  that  an  attachment  on  mesne  process,  being 
a  sequestration  of  his  property,  and  placing  it  provisionally  in  the 
custody  of  the  law,  should  give  way  to  the  more  general  seques- 
tration of  all  his  property  for  the  satisfaction  of  all  his  debts.  In 
that  case  the  creditor  will  receive  the  whole  amount  of  his  debt, 
if  there  be  assets,  and  his  satisfaction  pro  rata,  if  there  be  a 
deficit ;  and  as  between  him  and  other  creditors  there  seems  no 
equitable  ground  on  which  he  should  have  more.  Such  is  the 
law  in  Massachusetts,  in  regard  to  the  settlement  of  the  estate  of 
a  deceased  insolvent  debtor,  where  the  settlement  and  distribu- 
tion of  the  estate  must  necessarily  be  final.  Upon  the  appoint- 
ment of  an  administrator,  who  takes  the  property  as  trustee  for 
all  the  creditors,  all  attachments  on  mesne  process  are  dis- 
solved." 1 

In  Rhode  Island  it  is  held,  on  common-law  principles,  that  the 
attachment  is  dissolved  by  the  death  of  the  defendant ;  notwith- 
standing the  statute  of  that  State  declaring  that  "  the  executor 
or  administrator  of  such  deceased  party,  in  case  the  cause  of  ac- 
tion survives,  shall  have  full  power  to  prosecute  or  defend  such 
action  or  suit  from  court  to  court  until  final  judgment ;  and  is 
hereby  obliged  to  prosecute  or  defend  the  same  accordingly."  '^ 

1  Davenport  v.  Tilton,  10  Metcalf,  320.  to  a  new  action  against  the  executor  or 
-  Vaugiin  V.  Sturtevant,  7  Rhode  Is-  administrator  of  the  deceased,  in  which 
land,  372.  The  court  said  :  "  By  the  the  writ  wouhl  authorize  neither  an  arrest 
common  law,  tlie  death  of  a  sole  defend-  nor  an  attachment  of  real  estate.  From 
ant  at  any  time  before  final  judgment  none  of  these  consequences  is  the  surviv- 
would  have  abated  the  suit  altogether,  ing  party  saved  except  by  the  provisions 
and  no  judgment  could  have  been  ren-  of  Ch.  161  of  the  Revised  Statutes  [of 
dered  therein.  Tlie  suit  must  have  been  1857]  referred  to ;  and  these  do  not  de- 
dismissed  ;  any  attachment  made  therein  clare  that  the  action  shall  not  abate,  or 
dissolved  and  lost ;  and  the  plaintiff  put  that  it  shall  survive  with  all   the  iuci- 

[341] 


§  422  DISSOLUTION   OF   AN   ATTACHMENT.      [CHAP.  XVI. 

In  Pennsylvania,  where  a  foreign  attachment,  as  under  the 
custom  of  London,  is  a  process  to  compel  the  appearance  of  a 
non-resident  debtor,  by  distress  and  sale  of  the  property  attached, 
it  is  held,  that  the  death  of  the  defendant  before  final  judgment 
dissolves  the  attachment,  if  he  shall  not  have  entered  special  bail. 
But  his  death  after  final  judgment  does  not  have  that  effect.  In 
the  case  in  which  these  points  were  decided,  the  court  say :  "  If 
these  proceedings  were  in  all  respects  in  rem^  they  would  not 
abate  by  the  death  of  the  defendant.  For  some  purposes  they 
are  to  be  so  considered  ;  for  execution  can  only  be  against  the 
goods  attached,  but  not  against  the  person  of  the  defendant ;  but 
to  every  purpose  they  are  not ;  for  by  entering  special  bail,  the 
attachment  is  dissolved,  and  it  then  becomes  a  mere  personal  ac- 
tion." ^  The  United  States  Circuit  Court  for  the  District  of 
Columbia  held  the  same  position.^ 

In  Louisiana,  it  was  decided  that  an  attaching  creditor  acquires 
no  privilege  upon  the  property  of  a  debtor  in  that  State,  who 
dies  during  the  pendency  of  the  suit,  and  whose  estate  is  admin- 
istered upon  there,  so  as  to  entitle  him  to  priority  of  payment  out 
of  the  assets  of  the  estate.^ 

In  Tennessee  the  rule  is,  that  if  the  defendant  die  pendente 
lite.,  no  judgment  can  be  rendered  without  making  his  adminis- 
trator a  party ;  and  after  judgment  against  the  administrator,  no 
order  for  the  sale  of  real  estate  attached  can  be  made,  without 
making  the  heirs  parties  to  the  proceeding  ;  "*  but  where  these 
steps  were  taken,  the  court  ordered  a  sale  of  the  land ;  which 
was  in  effect  to  hold  that  the  attachment  was  not  dissolved  by 
the  death  of  the  defendant.^ 

dents  it  originally  had  ;  but  that  instead  scribed.     It  is  equally  clear,  that  the  lien 

of  being  dismissed,  it  may  be  made  to  now  claimed  by  the  plaintiff  is  not  saved 

answer   the   purposes    of  the    new   suit  by  those  provisions,  either  expressly  or 

which   a   dismissal  of  the  action  would  impliedly,   and   that  no    execution    can 

render  necessary.     This  is  to  be  done  by  issue  against  the  real  estate  of  the  orig- 

compelling  the  new  parties  necessary  to  inal  defendant  which  had  been  attached." 

such  new  suit  to  become  parties  to  this.  The    court    reasserted    these    views    in 

and  allowing  the  action  then  to  proceed  Upham  v.  Dodge,  11  Rhode  Island,  621. 
as  if  the  suit  had  originally  been  between  i  Fitch  v.  Ross,  4  Sergeant  &  Rawle, 

them,  and  the  deceased  had  never  been  557. 

a   party."     The   court  then   noticed,   in  ^  Pancost   v.  Washington,  5   Cranch, 

detail,  tiie  statutory  provisions,  and  said  :  C.  C.  507. 

"It  is  quite  clear,  that  these  provisions  ^  Collins   v.    Duffy,  7   Louisiana  An- 

save  nothing  of  the  incidents  of  an  abate-  nual,  39. 

ment  of  the  original  suit,  except  that  the  ■*  Green  v.  Shaver,  3  Humphreys,  139. 

action   is   allowed   to   proceed   with   the  °  Perkins   v.  Norvell,  6   Humphreys, 

new  parties,   and  in    the    manner    pre-  151. 
[342] 


CHAP.  XVI.]       DISSOLUTION   OF   AN   ATTACHMENT.  §  423 

In  Missouri,^  and  California,^  the  death  of  the  defendant  before 
judgment  dissolves  the  attachment;  and  in  the  former  State,  if 
the  death  take  place  after  the  rendition  of  a  judgment  without 
personal  service,  and  therefore  binding  only  the  property  at- 
tached, the  same  result  will  follow.^ 

In  South  Carolina  it  was  held,  that  a  foreign  attachment 
abates  by  the  death  of  the  defendant  pending  the  suit ;  but  when 
the  garnishee  has  made  default,  judgment  may  be  had  against 
him  after  the  defendant's  death.^ 

In  New  York  it  was  held,  that  the  plaintiff  acquired  by  the  at- 
tachment a  right  in  the  property  attached,  which  could  not  be 
defeated  by  the  death  of  the  defendant,  if  the  action  survived, 
and  the  court  had  power  to  continue  it  against  the  representa- 
tive.^     And  so  in  West  Virginia,^  and  Iowa.'' 

In  Mississippi,  the  statute  provides  that  "  if  the  defendant 
shall  die,  after  the  service  of  the  writ  of  attachment,  the  action 
shall  not  thereby  be  abated  or  discontinued,  but  shall  be  carried 
on  to  judgment,  sale,  transfer,  and  final  determination,  as  if  the 
defendant  were  still  alive,  and  such  death  had  not  occurred." 
And  it  was  there  held,  that  the  death  of  the  defendant  puts  an 
end  to  the  power  of  the  court  to  render  a  personal  judgment 
against  him  ;  but  that  a  judgment  may  be  rendered  against  him 
as  a  necessary  means  to  charge  a  garnishee ;  that  it  can  reach 
only  what  was  attached  in  the  garnishee's  hands  ;  and  when  that 
is  accomplished,  the  judgment  has  no  further  virtue.^ 

§  423.  Whatever  diversity  of  views  may  exist,  as  to  the  effect  '^ 
upon  a  pending  attachment  of  the  death  of  the  defendant,  there 
can  be  no  doubt  that  a  suit  by  attachment,  commenced  after  the 
death  of  the  defendant,  is  utterly  void,  and  therefore  that  no 
attachment  of  property,  or  proceeding  by  garnishment,  in  such 
suit,  can  have  any  validity  whatever.^ 

1  Sweringen  v.  Eberius,  7  Missouri,  6  Howard  Pract.  47 ;  3  Code  Reporter, 
421.     See  Loubat  v.  Kipp,  9  Florida,  60.       176 ;    Thacher  v.   Bancroft,    15    Abbott 

2  Myers  v.  Mott,  29  California,  359 ;     Pract.  243. 

Hensley  v.  Morgan,  47  Ibid.  622.  ^  White  v.  Heavner,  7  "West  Virginia, 

3  Harrison  v.  Renfro,  13  Missouri,  446.     324. 

*  Kennedy    i-.    Raguet,   1    Ray,   484;  1  Lord  j;.  Allen,  84  Iowa,  281. 

Crocker    v.    Radcliffe,    1    Constitutional  ^  Holman   v.    Fisher,   49    ^Mississippi, 

Court  (Treadway),  83.  472. 

5  Moore  v.  Thayer,  10  Barbour,  258 ;  9  Loring  v.  Folger,  7  Gray,  505. 

[343] 


§  425  DISSOLUTION   OF    AN   ATTACHMENT.      [CHAP.  XVI. 

§  424.  The  same  views  wliicli  would  abate  or  dissolve  an 
attaehment  upon  the  death  of  a  person,  would  produce  a  like  re- 
sult in  the  case  of  the  civil  death  of  a  corporation  ;  and  it  has 
been  so  decided  in  Maine,  Pennsylvania,  and  Alabama.^ 

§  425.  In  this  connection,  too,  may  properly  be  considered  the 
effect  upon  an  attachment  of  an  act  of  bankruptcy  committed  by 
the  defendant  after  the  levy  of  the  writ.  Does  that  act  dissolve 
an  attachment  previously  made?  This  question  has  excited 
elaborate  discussion  by  some  of  the  first  jurists  of  the  country. 
It  will  at  once  be  seen  to  turn  altogether  on  the  point  whether 
an  attachment  is  a  lien,  in  such  sense  as  to  be  within  that  clause 
of  the  Bankrupt  Law  which  protects  existing  liens  against  the 
operation  of  the  law.  If  a  lien,  the  attachment  cannot  be  dis- 
solved by  an  act  of  bankruptcy  on  the  part  of  the  defendant. 

The  late  Justice  Story,  on  more  than  one  occasion,  during 
the  existence  of  the  General  Bankrupt  Act  of  1841,  decided  that 
an  attachment  under  mesne  process  is  not  a  lien,  either  in  the 
sense  of  the  common  law,  or  of  the  maritime  law,  or  of  equity  ; 
but  only  a  contingent  and  conditional  charge,  until  the  judgment 
and  levy ;  and  therefore  was  dissolved  by  the  defendant's  bank- 
xwpicyp-  In  this  judgment,  that  learned  jurist  stood  opposed  by 
every  other  tribunal  in  the  United  States  before  which  the  ques- 
tion was  made,  except  the  Supreme  Court  of  Louisiana.^  The 
great  weight  attached  to  his  views  on  any  question  led,  after  the 
promulgation  of  those  decisions,  to  several  very  able  opinions  in 
favor  of  the  opposite  conclusion.  Indeed,  in  every  instance 
where  the  subject  was  passed  upon,  with  the  single  exception 
just  named,  the  lien  of  the  attachment  was  sustained.  The  Dis- 
trict Court  of  the  United  States  for  Vermont,^  the  late  Justice 
Thompson,  of  the  Supreme  Court  of  the  United  States,^  and  the 
Supreme  Courts  of   Maine,^   New  Hampshire,''  Massachusetts,^ 

1  Bowker    v.    Hill,    60    Maine,    172  ;  *  Uowner  v.  Brackett,  5  Law  Reporter, 
Farmers  and  Mechanics' Bank  u.  Little,  392;  21    Vermont,  599;    Rowell's    Case, 
8   Watts   &   Sergeant,    207  ;  Paschall   v.  6  Law  Reporter,  300 ;  21  Vermont,  620. 
Whitsett,  11  Alabama,  472.     In  Lindell          ^  Haughton  v.  Eustis,  5  Law  Reporter, 
V.  Benton,  6  Missouri,  361,  it  was  held,  505. 

that    the   civil   death  of   a   corporation,  ^  Franklin    Bank    v.    Batchelder,   28 

after  the  garnishment  of  its  debtor,  did  Maine,  60. 

not   prevent   the   subjection  of   the  gar-  "^  Kittredge  v.  Warren,  14  New  Hamp. 

nishee  to  liability.  509 ;  Kittredge  v.  Emerson,  15  Ibid.  227  ; 

2  Foster's  Case,  2  Story,  131 ;  Bellows  Buffum  v.  Seaver,  1(5  Ibid.  160.  See 
and  Peck's  Case,  3  Story,  428.  Peck  v.  Jenness,  7  Howard  Sup.  Ct.  612. 

3  Fisher  v.  Vose,  3  Robinson  (La.),  457.  ^  Davenport  v.  Tilton,  10  Metcalf,  320. 

[344] 


CHAP.  XVI.]        DISSOLUTION   OF   AN   ATTACHMENT.  §  426 

New  Jersey,!  and  Mississippi,^  all  concurred  in  that  result.  The 
Supreme  Court  of  Connecticut,  in  a  case  arising  under  the  Bank- 
rupt Act  of  1800,  also  held  views  opposed  to  those  of  Justice 
Stoey.3  When  to  these  adverse  opinions  we  add  the  numerous 
decisions  of  different  courts  previously  cited,^  affirming  the  lien 
of  an  attachment,  we  are  justified  in  considering  it  settled  by  the 
weight  of  authority,  that  an  attachment  is  not  dissolved  by  the 
defendant's  bankruptcy.^ 

§  426.  When  an  attachment  has  been  dissolved,  by  reason  of  a 
judgment  in  favor  of  the  defendant,  or  otherwise,  the  special 
property  of  the  officer  in  the  attached  effects  is  at  an  end,  and 
he  is  bound  to  restore  them  to  the  defendant,  if  he  is  still  the 
owner  of  them,  or  if  not,  to  the  owner  ;  and  this  without  being 
reimbursed  any  money  he  may  have  paid,  in  extinguishment  of  a 
lien,  in  order  to  obtain  the  property  under  the  writ,  or  as  ex- 
penses connected  with  its  safe  keeping.^  If  he  fail  to  make  such 
return,  he  is  liable  for  the  property.  And  he  cannot  screen  him- 
self from  this  liability,  by  delivering  the  property  to  the  plaintiff. 
It  is  not  his  duty  —  indeed  it  would  be  contrary  to  his  duty  — 
to  make  such  a  delivery  to  the  creditor,  even  after  his  demand  is 
ascertained  and  sanctioned  by  a  judgment.  Goods  attached  are 
in  the  legal  custody  of  the  officer,  and  he  is  accountable  for  them, 
no  less  to  the  defendant  than  to  the  plaintiff  in  the  attachment ; 
and  the  general  property  in  the  goods  is  not  changed,  until  a 
levy  and  sale  under  execution.^  But  in  order  to  entitle  the  de- 
fendant to  a  return  of  the  property,  the  attachment  must,  in  fact, 
have  been  dissolved.  It  is  not  enough  that  the  defendant  has 
settled  with  the  plaintiff  the  matter  in  controversy,  and  is  en- 
titled, as  against  the  plaintiff,  to  a  return  of  the  property.  The 
fact  of  such  settlement  must  be  brought  home  to  the  officer,  by 
actual  notice,  or  by  a  discontinuance  of  the  suit,  before  the  de- 
fendant can  maintain  an  action  against  him  for  the  property.^ 

1  Vreeland  v.  Brown,  1  Zabriskie,  214.  witliin   four  months  next  preceding  the 

2  Wells  V.  Brander,  10  Smedes  &  Mar-  commencement    of   the    proceedings    in 
shall,  348.  bankruptcy. 

3  Ingraham  v.  Phillips,  1  Day,  117.  ^  Felker    v.    Emerson,   17    Vermont, 

*  Ante,  §  224.  101 ;  McReady  v.   Rogers,   1    Nebraska, 

*  This  section  does  not  refer  to   the     124. 

General  Bankrupt  Act  of  March  2,  1867 ;  ^  Blake  v.  Shaw,  7  Mass.  505.^    See 

under  which  the  assignment  of  the  bank-     Snead  v.  Wegman,  27  Missouri,  170. 
rupt's  effects  operates  as  a  dissolution  of         »  Livingston  v.  Smith,  5  Peters,  90. 
any   attachment  of   his  property  made 

[345] 


§  428  DISSOLUTION   OF  AN   ATTACHMENT.      [CHAP.  XVI. 

The  same  obligation  to  return  the  attached  property  to  the 
owner  rests  npon  the  officer,  where  the  plaintiff  has  instructed 
him  to  release  the  levy  of  the  writ ;  ^  and  likewise  where  the 
attachment  is  discharged  by  a  payment  of  the  debt ;  but  in  the 
latter  case  the  officer  cannot  be  charged  as  a  wrong-doer  for  hold- 
ing the  property  until  satisfactory  evidence  be  given  him  that  the 
attachment  has  been  vacated. ^  Primd  facie,  in  such  cases,  the 
officer  must  assume  the  defendant  to  be  the  owner ;  but  if  he 
have  notice  of  a  sale  of  the  property  by  the  defendant,  he  must 
not  deliver  it  to  the  defendant,  but  to  the  vendee.^  And  when- 
ever the  obligation  rests  upon  the  officer  to  return  the  property, 
either  to  the  defendant  or  to  a  vendee,  the  sureties  in  the  officer's 
official  bond  are  liable  for  his  failure  to  make  such  return.* 

§  427.  The  liability  of  the  officer  to  the  defendant,  for  the  at- 
tached property,  does  not  necessarily  accrue  in  all  cases  imme- 
diately upon  the  dissolution  of  the  attachment ;  but  must  depend, 
as  to  the  time  when  it  accrues,  upon  the  particular  circumstances 
of  the  case.  Thus,  where  property  was  delivered  by  the  officer 
to  a  receiptor,  approved  by  the  defendant,  and  the  receiptor 
failed  to  deliver  it  when  required,  it  was  held,  that  the  defendant 
could  not  maintain  an  action  against  the  officer  therefor,  until  the 
lapse  of  a  reasonable  time  to  enable  the  latter  to  recover  it  from 
the  receiptor.^ 

§  428.  The  right  of  the  defendant  to  demand  a  return  of  at- 
tached property  upon  the  dissolution  of  an  attachment,  is  sus- 
pended by  an  appeal  or  writ  of  error,  with  notice  thereof  to  the 
officer.  But  if  before  writ  of  error  or  appeal  the  defendant  de- 
mands it,  and  the  officer  gives  it  up,  it  was  held  in  Alabama, 
that  the  latter  cannot  afterwards,  on  reversal  of  the  judgment, 
be  held  responsible  for  it.^  This  was  ruled  in  a  case  where  the 
judgment  dissolving  the  attachment  was  rendered  "  at  the  spring 
term  "  of  the  court,  and  the  writ  of  error  was  not  sued  out  until 
the  following  November,  and  in  the  intervening  June  the  sheriff 
returned  the  proceeds  of  the  attached  property  to  the  defendant. 

1  Levy  V.  McDowell,  45  Texas,  220.  *  Levy  v.  McDowell,  45  Texas,  220 ; 

2  Wheeler  v.  Nichols,  32  Maine,  233.        State  v.  Fitzpatrick,  64  Missouri,  185. 

<*  State    V.  Fitzpatrick,   64    Missouri,  ^  Bissell  v.  Huntington,  2  New  Hamp. 

185.  142. 

6  Sherrod  v.  Davis,  17  Alabama,  312. 
[346] 


CHAP.  XVI.]       DISSOLUTION  OF   AN  ATTACHMENT.  §  428 

But  where  the  attachment  plaintiff  acts  promptly  in  taking  the 
case  to  a  higher  court,  by  appeal  or  writ  of  error,  operating  as  a 
supersedeas,  it  were  a  great  injustice  to  him  to  hold  that  the 
officer  who  attached  the  property  may  give  it  back  to  the  defend- 
ant, and  escape  all  liability  for  it  to  the  plaintiff,  when  the  judg- 
ment dissolving  the  attachment  is  reversed,  and  the  plaintiff's 
right  to  hold  the  property  has  been  established.  In  such  case, 
there  would  hardly  seem  room  for  doubt  that  the  contrary  view 
taken  by  the  Supreme  Court  of  Iowa  is  correct.  There  the  at- 
tachment plaintiff,  at  the  same  term  of  the  court  at  which  his 
attachment  was  dissolved,  and  within  four  days  after  the  dissolu- 
tion, appealed  from  the  judgment,  and  gave  a  supersedeas  bond ; 
but  in  the  interval  the  officer,  without  any  order  of  the  court,  gave 
back  the  attached  property  to  the  defendant.  On  the  appeal 
the  judgment  dissolving  the  attachment  was  reversed ;  and  the 
Supreme  Court  held,  that  the  plaintiff  had  not  lost  his  right  to 
recourse  upon  the  attached  effects.^  But  in  another  branch  of 
the  same  case,  that  court  subsequently  held,  that  this  decision 
had  no  reference  to  a  case  where  the  rights  of  third  persons  were 
involved.  And  so,  where  a  sum  of  money  was  in  the  hands  of 
the  clerk  of  the  court,  as  proceeds  of  the  sale  of  part  of  the  at- 
tached property,  and  between  the  time  when  the  attachment  was 
dissolved,  and  that  of  taking  the  appeal,  the  clerk,  without  know- 
ing that  the  appeal  would  be  taken,  paid  over  the  money  to  the 
defendant ;  it  was  held,  that  he  could  not  be  made  liable,  if  he 
paid  it  in  good  faith ;  that  if  the  plaintiff  wished  the  money  to 
remain  in  statu  quo,  he  should  have  notified  the  clerk  of  his  in- 
tention to  appeal ;  and  that  if  the  clerk  had  paid  it  over  after 
such  notice  he  would  have  been  liable.^  But  in  every  such  case 
it  is  undoubtedly  the  safest  course  for  the  officer  to  require 
an  order  of  the  court  for  the  payment  of  the  money  to  the  de- 
fendant. 

In  Arkansas,  a  plaintiff  appealed  from  a  judgment  in  favor  of 
the  defendant,  on  demurrer,  but  failed  to  file  in  due  time  in  the 
appellate  court  a  transcript  of  the  record,  and  the  appeal  was  for 
that  reason  dismissed.  One  month  and  four  days  after  the  dis- 
missal of  the  appeal,  the  plaintiff  sued  out  a  writ  of  error.  No 
supersedeas  bond  was  given,  either  on  the  appeal  or  the  writ  of 
error.    Under  that  writ  the  appellate  court  reversed  the  judgment 

1  Danforth  v.  Carter,  4  Iowa,  230.  2  Danforth  v.  Eupert,  11  Iowa,  547. 

[347] 


§  431  DISSOLUTION   OF   AN   ATTACHMENT.        [CHAP.  XVI. 

of  the  inferior  court,  and  ordered  the  latter  to  sustain  the  de- 
murrer, which  was  done.  The  case  was  then  tried  on  the  merits, 
and  the  issues  were  found  for  the  plaintiff;  whereupon  the  court 
rendered  a  judgment  m  personam  against  the  defendant,  and  then 
proceeded  to  order,  that,  as  no  bond  was  given  on  the  appeal  or 
on  the  writ  of  error,  the  attachment  lien  was  lost  by  the  judgment 
in  favor  of  the  defendant,  which  had  been  reversed.  The  Su- 
preme Court  held,  that  the  lien  of  the  attachment  was  not  lost, 
and  annulled  and  set  aside  this  order.^ 

§  429.  Where  two  attachments  were  executed  on  the  same 
effects,  and  the  first  executed  was  quashed,  and  the  judgment 
quashing  it  was  reversed,  but  in  the  mean  time  the  property  was 
sold  and  the  proceeds  paid  to  the  plaintiff  in  the  second  attach- 
ment ;  it  was  decided  that  the  first  attaching  creditor  was  entitled 
to  recover  from  the  second  the  money  paid  over  to  him.^  But 
where  over  three  years  elapsed  before  the  writ  of  error  was 
prosecuted,  it  was  held,  that  the  attachment  was  not  revived  as 
against  third  persons.^  And  if  the  first  attacher  dismiss  his 
suit,  but  afterwards,  with  the  consent  of  the  defendant,  obtain 
leave  of  court  to  reinstate  it  on  the  docket,  such  reinstatement 
cannot  have  the  effect  of  restoring  his  priority,  as  against  a  sub- 
sequent attacher.* 

§  430.  Where  property  is  attached  and  sold,  and  the  proceeds 
paid  to  the  plaintiff,  a  reversal  of  the  judgment  by  an  appellate 
court,  on  grounds  i;ot  affecting  the  merits  of  the  plaintiff 's  claim, 
will  not  entitle  the  defendant  to  recover  the  proceeds  back  from 
the  plaintiff,  where  it  appears  that  he  prosecuted  his  suit  in  good 
faith,  believing  himself  legally  entitled  to  do  it.  If  prosecuted, 
however,  for  the  purpose  of  obtaining  an  undue  advantage,  by 
getting  hold  of  the  proceeds  of  the  sale  of  the  property,  he  would 
not  be  permitted  to  avail  himself  of  an  advantage  thus  improp- 
erly obtained.^ 

§  431.  Where,  as  in  several  States,  the  sale  of  attached  prop- 
erty on  mesne  process  is  authorized,  if  an  officer  make  such  sale 

1  Harrison  v.  Trader,  29  Arkansas,  85.  *  Murphy  v.  Crew,  38  Georgia,  139. 

2  Caperton  v.  McCorkle,  5  Grattan,  *  Jackson  v.  Holloway,  14  B.  Monroe, 
177.  133. 

3  Harrow  v.  Lyon,  3  G.  Greene,  157. 

[348] 


CHAP.  XVI.]       DISSOLUTION   OF  AN  ATTACHMENT.  §  431 

of  part  of  the  attached  effects,  and  realize  therefrom  a  sufficiency 
to  pay  the  debt  on  which  the  attachment  was  obtained,  it  is  held, 
in  Vermont,  that  that  will  not  dissolve  the  attachment  as  to  the 
remainder,  or  impair  the  creditor's  lien  on  it,  whatever  may  be 
the  officer's  liability  for  attaching  more  property  than  was  needed 
to  satisfy  the  debt.^ 

1  Marshall  v.  Town,  28  Vermont,  14. 


Note.  —  A  large  part  of  this  Chapter,  as  arranged  in  previous  editions,  has 
been  transferred  to  Chapter  XII. ;  tchich  accounts  for  the  hiatus  in  the  section 
numbers  at  this  point. 

In  Chapters  XI.  and  XII.,  the  matter  of  dissolution  of  attachment  by  other 
means  than  those  set  forth  in  this  Chapter  is  discussed. 

[349] 


§  437       NOTICE  TO  DEFENDANTS  BY  PUBLICATION.     [CHAP.  XVII. 


CHAPTER    XVII. 

NOTICE   TO   ABSENT   DEPENDANTS   BY  PUBLICATION. 

§  436.  The  mere  issue  of  a  writ  of  attachment,  and  levying  it 
on  the  property  of  the  defendant,  without  service  of  process  on 
him,  without  notice  to  him  in  any  way,  and  without  appearance 
on  his  part,  is  not  a  sufficient  foundation  for  a  judgment  in  the 
attachment  suit  against  him.^  And  as  in  many  cases  the  absence 
of  the  defendant  would  preclude  the  possibility  of  service  of 
process  on  him,  provision  is  usually  made  in  attachment  laws  for 
notice  by  publication  to  absent  defendants,  of  the  institution 
and  pendency  of  attachment  suits  against  them,  in  order  that 
they  may,  if  they  see  proper,  appear  and  defend.  This  is  one  of 
the  guards  provided  for  the  protection  of  defendants,  and  the 
requirements  of  statutes  in  this  respect  should  be  strictly  en- 
forced. 

§  437.  This  notice  is  not  necessary  to  give  the  court  jurisdic- 
tion of  the  action.  Its  object  is  simply  to  inform  the  defendant, 
if  possible,  that  proceedings  have  been  taken  against  him. 
Whether  a  court  has  jurisdiction  of  any  particular  proceeding  is 
determined  by  establishing  its  authority  to  take  the  first  step 
therein.  When,  therefore,  in  an  attachment  cause,  the  ground 
required  by  statute  has  been  laid  for  the  issue  and  execution  of 
the  process,  and  the  process  has  been  issued  and  executed,  the 
jurisdiction  of  the  court  has  attached.  If  this  ground  be  not 
laid,  there  is  no  right  to  take  the  first  step,  and  that  and  all  sub- 
sequent ones  are  simply  void.  When,  however,  jurisdiction  has 
been  attained,  the  subsequent  proceedings  must  conform  to  the 
law,  in  order  to  make  the  action  of  the  court  effectual.  Want 
of  such  conformity  will  be  error,  and,  therefore,  a  good  ground 
for  reversing  the  judgment  of  the  court ;  but  will  not  make  the 

1  Edwards   v.  Toomer,  14   Smedes   &     sippi,  648 ;  Martin  v.  Dryden,  6  Illinois 
Marshall,  75 ;  Ridley  v.  Ridley,  24  Missis-     (1  Oilman ),  187. 
[350] 


CHAP.  XVn.]      NOTICE  TO  DEFENDANTS  BY  PUBLICATION.    §  437  a 

proceedings  void.  When,  therefore,  notice  to  the  defendant  by 
publication  is  required,  it  is  not  an  element  of  the  jurisdiction  of 
the  court,  but  is  necessary  to  authorize  the  court  to  exercise  its 
jurisdiction  by  giving  judgment  in  the  cause  ;  ^  and  when  the  de- 
fendant is  thus  notified,  he  is  before  the  court  for  all  purposes 
except  the  rendition  of  a  personal  judgment  against  him ;  ^  and 
the  judgment  obtained  against  him  is  so  far  conclusive,  that  the 
rights  of  purchasers  of  property  under  it  will  be  jDrotected.^ 

§  437  a.  The  fact  of  publication  according  to  statutory  require- 
ment, must  appear  in  the  record,  or  the  judgment  may  be  re- 
versed.^ It  may  apjDear  either  by  the  court's  entering  of  record 
a  finding  of  the  fact,  or  by  setting  out  in  the  record  the  evidence 
of  publication  ;  ^  the  former  mode  being  much  preferable.  Where 
the  statute  does  not  require  the  proof  of  publication  to  be  made 
in  any  particular  mode,  the  court  will  receive  such  evidence  as 
may  be  satisfactory  to  it ;  and  then  it  is  important  that  it  should 
enter  of  record  that  the  publication  has  been  proved.  If  proof 
in  a  particular  mode  be  required  by  statute,  the  fact  of  its  having 
been  made  in  that  mode  may  either  appear  by  inserting  the  evi- 
dence in  the  record,  or  by  a  record  finding  that  the  publication 
has  been  made.  If  the  statute  do  not  require  a  particular  mode 
of  proof,  but  authorize  the  fact  of  publication  to  be  established 
by  the  certificate  of  a  printer  or  publisher,  and  it  is  sought  to 
prove  it  in  that  way,  and  to  show  by  the  insertion  of  the  certifi- 
cate in  the  record  that  the  publication  has  been  made,  it  will  be 
insufficient  if  the  certificate  do  not  follow  the  statutory  authority. 
Thus,  where  the  law  authorizes  publication  to  be  shown  by  the 
certificate  of  the  printer  or  publisher,  with  a  written  or  printed 
copy  of  the  notice  annexed,  a  certificate  inserted  in  the  record, 
which  does  not  show  that  the  party  making  it  was  printer  or 
publisher,  will  not  suffice.*^  And  where  the  law  requires  the  cer- 
tificate to  state  the  dates  of  the  first  and  last  papers  containing 
the  advertisement,  the  omission  to  state  the  date  of  the  last  paper 

1  Paine  v.  Mooreland,  15  Ohio,  435 ;  *  Foyles  v.  Kelso,  1  Blackford,  215 ; 
Williams  v.  Stewart,  3  Wisconsin,  773 ;  Haywood  v.  McCrory,  33  Illinois,  459 ; 
Beech  v.  Abbott,  0  Vermont,  586  ;  Mas-     Haywood  v.  Collins,  60  Ibid.  2>'l%. 

sey  V.  Scott,  4'J  Missouri,  278.     Sedcotdra,  ^  Haywood  v.  Collins,  60  Illinois,  328. 

Calhoun  v.  Ware,  34  Mississippi,  146.  6  Haywood   v.   McCrory,   33   Illinois, 

2  King  V.  Vance,  46  Indiana,  246.  459 ;  Haywood  v.  Collins,  60  Ibid.  328. 


8  Bliss  V.  Heasty,  61  Illinois,  338. 


[36 


§  440       NOTICE  TO  DEFENDANTS  BY  PUBLICATION.      [CHAP.  XVII. 

vitiates  the  proof.^  And  where  the  court  makes  a  record  finding 
of  the  fact  of  publication,  it  is  not  enough  to  find  "  that  pul)lica- 
tion  was  made  giving  the  defendant  notice  according  to  law ; " 
but  the  record  must  show  that  the  publication  was  made  the 
number  of  times  required  by  the  statute.^  When  the  court  makes 
such  a  finding,  showing  the  due  publication  of  the  notice,  in  the 
manner  and  for  the  number  of  times  required  by  law,  the  correct- 
ness of  the  finding  cannot  be  collaterally  questioned.^ 

§  438.  This  subject  presents  itself  in  a  twofold  aspect :  1.  As 
to  the  sufficiency  of  the  notice,  as  the  foundation  for  further  pro- 
ceedings in  the  cause ;  and,  2.  As  to  the  effect  of  failing  to  pub- 
lish notice,  or  of  publishing  an  insufficient  one,  upon  the  validity 
of  the  subsequent  proceedings  in  the  suit,  when  afterwards  called 
in  question  inter  alios. 

§  439.  Under  the  first  head,  the  sufficiency  of  the  notice  to 
authorize  judgment  against  the  defendant  depends  upon  its  con- 
formity to  the  statute  in  its  terms  and  its  publication.  As  to  the 
terms,  there  should  be  a  substantial,  if  not  a  strict  compliance 
with  the  law.  Therefore,  where  the  advertisement  was  required 
to  "  state  the  names  of  the  parties,  the  day,  month,  and  year, 
when,  and  from  what  court,  and  for  what  sum,  the  writ  issued," 
and  it  omitted  to  state  the  day,  month,  and  year  when  the  writ 
issued,  it  was  held  to  be  insufficient.^ 

§  440.  In  Missouri,  where  the  statute  required  "  the  court  to 
order  a  publication  to  be  made,  stating  the  nature  and  amount  of 
the  plaintiff 's  demand,"  &c.,  it  was  held  that  stating  in  the  no- 
tice "  that  an  action  of  assumpsit  for  the  sum  of  1403.70  had 
been  commenced  against  him,"  was  a  sufficient  statement  of  the 
nature  of  the  plaintiff's  demand.^  Under  the  same  statute,  it 
was  decided  that  a  notice  stating  that  the  proceedings  were 
"  founded  on  two  promissory  notes  for  the  sum  of  $386.94,"  was 
uncertain  upon  the  material  point  of  the  amount  actually  claimed; 
and  the  judgment  was  for  that  cause  set  aside.^ 

1  Haywood  v.   McCrory,   33   Illinois,  *  Ford  v.  Wilson,  Tappan,  235. 

459.  ^  Sloan  v.  Forse,   U   Missouri,    126. 

2  Dow  V.  Wliitman,  36  Alabama,  604.  See  Freeman  v.  Thompson,  53  Ibid.  183. 

3  Freeman  v.  Thompson,  53  Missouri,  ^  Haywood  v.  Eussell,  44  Missouri, 
183.  252. 

[352] 


CHAP.  XVII.]      NOTICE  TO  DEFENDANTS  BY  PUBLICATION.        §  442 

In  the  same  State,  it  was  ruled,  under  a  statute  requiring  the 
defendant  to  be  notified  "  that  his  property  had  been  attached," 
that  a  notice  omitting  that  clause  was  bad ;  ^  but  afterwards  a 
judgment  rendered  on  such  a  notice  was  sustained.^  Under  the 
same  statute,  a  notice  stating  that  his  "  property  was  about  to  be 
attached,"  was  considered  suificient.^ 

§  441.  In  Michigan,  the  statute  requires  the  clerk,  upon  the 
return  of  the  writ,  to  make  out  an  advertisement,  stating  the 
names  of  the  parties,  the  time  when,  from  what  court,  and  for 
what  sum,  the  writ  was  issued.  A  notice  containing  all  the 
statute  required,  was  made  out  and  published,  bearing  date 
November  23,  1843,  and  stating  that  the  writ  was  issued  on  the 
12th  of  June,  1843,  and  was  "  returnable  to  the  second  Tuesday 
after  the  first  Monday  in  November  next^''  instead  of  instant.  It 
was  regarded  as  a  mere  clerical  mistake,  which  would  not  mis- 
lead, and  did  not  vitiate  the  proceeding.*  So,  where  the  publica- 
tion was  erroneous  in  the  name  of  the  plaintiff,  because  of  the 
insertion  of  a  wrong  initial  of  his  middle  name  ;  it  was  considered 
not  to  invalidate  the  proceedings,  but  that  the  judgment  was 
effective  and  conclusive  between  the  parties,  until  reversed.  And 
in  the  same  case  it  was  held,  that  the  publication  was  not  vitiated 
by  reason  of  its  stating  that  the  term  of  court  at  which  the  de- 
fendant was  required  to  appear  was  in  August,  1887,  instead  of 
1867  ;  for  the  law  fixing  the  time  of  holding  the  court  was  suf- 
ficient notice  of  the  date.^ 

§  441  a.  If,  at  the  time  of  the  institution  of  a  suit  by  attach- 
ment, the  law  require  an  order  of  publication  to  be  made  by 
the  court,  a  subsequent  statute  requiring  it  to  be  made  by  the 
sheriff,  but  having  in  it  no  words  indicating  an  intention  in  the 
legislature  to  give  it  a  retroactive  effect,  will  not  invalidate  an 
order  made  by  the  court.^ 

§  442.  In  regard  to  the  time  of  publication,  where  publication 
was  required  to  be  made  for  two  months,  it  was  held  not  sufficient 
to  publish  it  for  eight  weeks.'' 

1  Durrossett's  Adm'r  v.  Hale,  38  Mis-  ^  Morgan  v.  Woods,  33  Indiana,  23. 

souri,  346.  ''  Parsons  v.  Paine,  20  Arkansas,  12-i. 

^  Moore  v.  Stanley,  51  Missouri,  317.  "  Pyle  v.  Cravens,  4  Littell,  17;  Law- 

3  Harris  v.  Grodner,  42  Missouri,  159.      lin  v.  Clay,  Ibid.  283  ;  Hunt  v.  Wickliffe, 
*  Drew  V.  Dequindre,  2  Douglass,  93.      2  Peters,  201. 

23  [353] 


§  445        NOTICE  TO  DEFENDANTS  BY  PUBLICATION.      [CHAP.  XVII. 

§  443.  Under  a  statute  requiring  notice  to  be  published  for 
four  weeks  successively,  an  affidavit  was  made  stating  that  it  had 
been  so  published,  once  every  week,  commencing  on  the  24th  of 
April  and  ending  on  the  5th  of  May ;  and  it  was  held,  that  the 
statement  that  it  had  been  published  four  weeks  successively  was 
sufficient,  and  the  additional  statement  assigning  the  dates  of  the 
commencement  and  conclusion  of  the  publication,  was  surplus- 
age, and  did  not  vitiate  the  previous  general  statement.^ 

§  443  a.  Under  a  statute  prescribing  a  publication  for  four 
weeks  successively,  "  the  last  insertion  to  be  at  least  four  weeks 
before  the  commencement  of  the  term,"  it  was  ruled,  that  this 
did  not  require  the  publication  to  commence  eight  weeks  before 
the  term,  nor  that  the  four  weeks  should  end  before  the  term ; 
but  it  was  sufficient  if  the  last  insertion  was  four  weeks  before 
the  term.^ 

§  444.  Where  the  law  provided  that  the  defendant  should  be 
notified  of  the  pendency  of  the  attachment,  by  j)ublication  of  a 
notice  in  a  newspaper  for  four  weeks  successively ;  and,  in  case 
sixty  days  should  not  intervene  between  the  first  insertion  of  the 
notice  and  the  first  term  of  the  court,  the  cause  should  be  con- 
tinued ;  it  was  held,  that  the  proper  rule  for  the  computation  of 
time  in  such  case,  was  to  exclude  the  day  on  which  the  notice 
was  first  inserted,  and  include  the  day  on  which  the  term  com- 
menced ;  and  that  a  notice  first  inserted  on  the  27th  of  May,  was 
not  good  for  a  term  of  court  beginning  on  the  25th  of  July.^ 

§  445,  Where  the  law  declared  that  no  judgment  should  be 
entered  on  the  attachment  until  the  exj^iration  of  twelve  months  ; 
during  which  time  the  plaintiff  should  cause  notice  of  the  attach- 
ment to  be  advertised  three  weeks  successively  in  a  public  news- 
paper ;  publication  at  any  time  within  the  twelve  months  was 
considered  sufficient.*  And  where  the  statute  does  not  fix  any 
time  within  which  the  publication  shall  be  commenced,  a  delay 
of  publication  for  two  years  and  a  half  was  not  regarded  as  a 
sufficient  ground  for  setting  aside  the  attachment  proceedings.'^ 

1  Swayze  ?;.  Doe,  13  Smedes  &  Mar-  (5  Oilman),  270 ;  Forsyth  ?;.  Warren,  62 
shall,  317.  Ibid.  68. 

2  Haywood  v.  Russell,  44  Missouri,  ■*  Harlow  v.  Becktle,  1  Blackford,  237. 
252.  5  Matter  of  Clark,  3  Denio,  167. 

3  Vairin    v.    Edmonson,    10    Illinois 

[354] 


CHAP.  XVII.]     NOTICE  TO  DEFENDANTS  BY  PUBLICATION.   §  446  « 

§  446.  A  common  occurrence  is  for  legislatures  to  change  the 
times  of  holding  courts.  Where  by  any  such  law  the  term  of  a 
court  is  fixed  for  a  time  anterior  to  that  at  which  it  was  formerly 
established,  and  the  full  time  required  by  law  for  publication  of 
notice  is  thereby  abridged,  no  proceedings  in  the  attachment  suit, 
depending  for  their  validity  upon  the  correct  publication  of  the 
notice,  can  properly  be  taken.  Therefore,  where  the  law  required 
publication  for  six  months,  and  after  publication  was  ordered,  the 
legislature  passed  a  law  requiring  the  court  to  be  held  at  an 
earlier  day  than  before,  which  allowed  only  four  months  for 
publication,  and  judgment  was  taken  at  the  end  of  four  months, 
it  was  considered  erroneous,  and  was  reversed.^  In  Missouri, 
however,  where  the  time  of  holding  the  court  was  changed,  so  as 
to  bring  the  term  forward,  and  the  law  provided  that  "  all  writs, 
process,  and  proceedings  made  returnable  to  the  courts  of  either 
of  the  above-named  counties,  shall  be  returnable  to  the  courts 
held  under  this  act ;  "  an  order  of  publication  issued  after  the 
act  took  effect,  requiring  the  defendant  to  appear  at  the  time 
when  the  court  was  to  be  held  under  the  previous  act,  but  which 
was  published  the  required  number  of  times  before  the  time  fixed 
by  the  new  act  for  holding  the  court,  was  sustained  in  a  collateral 
contest  of  the  validity  of  the  judgment  in  the  attachment  suit.^ 

§  446  a.  All  defects  in  the  notice  or  in  its  publication  are 
waived  by  the  defendant's  appearance  and  traverse  of  the  alle- 
gations of  the  affidavit.^  But  this  waiver  cannot  so  set  up  void 
proceedings  as  to  make  them  valid  ah  initio  as  against  rights  ac- 
quired by  third  persons  in  the  property  attached,  between  the 
time  of  the  levy  of  the  attachment  and  that  of  the  sale  of  the 
property  under  execution  issued  on  judgment  obtained  in  the  at- 
tachment suit.  Thus,  where  an  attachment  was  levied  on  real 
estate,  and  the  defendant  was  not  served,  and  the  case  was  pros- 
ecuted to  judgment  on  publication  of  notice  to  him ;  and  after 
the  sale  of  the  land  on  execution,  the  defendant  appeared  and 
moved  to  set  aside  the  judgment,  not  only  because  of  the  ille- 
gality of  the  publication,  but  becausje  the  judgment  was  rendered 
on  insufficient  evidence  ;  this  was  held  to  be  an  appearance  to 

1  Saffaracus    r\   Bennett,    G    Howard  ^  Freeman  v.  Tliompson,  53  Missouri, 

(Mi.),  277;  Colwell  v.  Bank  of  Steuben-     183. 

ville,  2  Ohio,  229,  2d  Edition,  377.  ^  Williams   v.  Stewart,  3  Wisconsin, 

773. 

[355] 


§  448        NOTICE  TO  DEFENDANTS  BY  PUBLICATION.     [CHAP.  XVII. 


the  merits  and  a  submission  to  the  juriscliction,  which,  so  far  as 
the  defendant  was  concerned,  might  cure  the  original  defects ; 
but  that  it  did  not  so  validate  the  proceedings  ah  initio  as  to 
vitiate  a  conveyance  of  the  land  made  by  him  during  the  pen- 
dency of  the  attachment  suit.^ 

§  447.  But  a  much  more  serious  question  than  any  that  have 
been  mentioned,  arises  when  title  is  claimed  under  judgments  in 
attachment  cases,  where  there  has  been  insufficient  publication, 
or  none  at  all.  Upon  this  point,  it  was  decided  in  Indiana,  in  an 
action  of  ejectment  for  the  recovery  of  land,  purchased  at  sher- 
iff's sale  in  an  attachment  suit,  that  insufficiency  of  publication 
did  not  invalidate  the  proceedings,  so  as  to  allow  them  to  be  im- 
peached collaterally.^ 

§  448.  In  Ohio,  in  a  similar  case,  it  was  at  one  time  held,  that 
the  fact  of  the  notice  required  by  statute  not  having  been  given, 
made  the  judgment  and  sale  under  it  void,  and  that  the  pur- 
chaser at  the  sale  acquii»ed  no  title  ;  ^  but  the  Supreme  Court  of 
that  State  afterwards  reversed  itself  on  this  point,  and  held,  that 
the  proceedings  of  the  court  are  not  so  invalidated  by  the  failure 
to  make  publication,  as  to  make  the  sale  under  them  void.*     And 


1  Anderson  v.  Coburn,  27  Wisconsin, 
558. 

2  Zeigenhagen  v.  Doe,  1  Indiana, 
206. 

3  Warner  v.  Webster,  13  Ohio,  505. 

*  Paine  v.  Mooreland,  15  Ohio,  435. 
In  this  case  the  action  was  ejectment,  and 
the  defendant  claimed  title  under  a 
sheriff's  deed,  made  in  pursuance  of  a  sale 
under  execution  in  an  attacliment  suit, 
where  the  notice  required  by  statute  was 
not  given.  Tliis  title  was  impeached  on 
the  ground  of  the  nullity  of  the  proceed- 
ings in  the  attachment  suit.  We  present 
the  opinion  of  the  court  on  this  point. 

"  Are  the  proceedings  in  attachment 
void  'i  It  is  contended  they  are  void,  be- 
cause no  notice  of  the  pendency  of  the 
attacliment  was  given  as  required  by  the 
statute.  If  the  jurisdiction  of  the  court 
once  attached,  subsequent  irregularities 
would  render  the  judgment  voidable 
only ;  and  it  would  remain  valid  until 
reversed,  and  cannot  be  impeached  collat- 
erally. 

[356] 


"  What,  then,  gives  the  court  jurisdic- 
tion in  a  proceeding  in  attachments  The 
filing  of  the  proper  affidavit,  issuing  the 
writ,  and  attaching  the  property.  The 
moment  the  writ  goes  into  the  hands  of 
the  officer,  he  is  authorized  and  required 
to  seize  the  property.  When  this  is  done, 
the  property  is  taken  out  of  the  posses- 
sion of  the  debtor  into  the  custody  of  the 
law.  The  court  have  authority,  at  any 
time  after  the  return  of  the  writ,  to  direct 
property  of  a  perishable  nature  to  be 
sold.  It  is  not  until  after  the  return  of 
the  writ  that  the  clerk  is  directed  to  make 
out  the  advertisement,  which  the  plaintiff 
is  required  to  have  published  as  the  stat- 
ute directs.  If  he  neglects  to  have  such 
notice  published,  for  six  weeks  succes- 
sively, the  statute  directs  that  the  attach- 
ment shall  be  dismissed  with  costs.  Here, 
then,  for  a  period  of  six  weeks,  at  least, 
if  the  publication  of  the  notice  only  gives 
jurisdiction,  the  court  both  have  and  have 
not  jurisdiction  over  the  property  seized 
in  attachment.     It  is  contended  the  court 


CHAP.  XVII.]      NOTICE  TO  DEFENDANTS  BY  PUBLICATION.        §  448 


it  is  SO  ruled  in  Vermont,^  New  York,^  Missouri,^  Iowa,'*  and  Ne- 
braska,^ and  by  the  Supreme  Court  of  the  United  States.^  But 
in  Maryland,  a  judgment  rendered  without  notice,  personal  or 
constructive,  to  the  defendant,  or  appearance  by  him,  is  wholly 
void,  though  property  be  attached.'''  And  in  Michigan,  under  a 
statute  in  these  words :  "  If  a  copy  of  the  attachment  shall  not 


has  no  jurisdiction,  and  yet  the  statute 
autliorizes  the  court  to  exercise  a  judicial 
act  over  property  attached,  namely,  to 
determine  whether  it  is  perishable,  and  if 
so,  to  direct  its  sale.  Will  it  be  contended, 
then,  that  the  court  has  jurisdiction  over 
perishable  property  before  notice  con- 
summated, but  not  over  property  not  per- 
ishable' This  is  a  distinction  not  au- 
thorized by  the  statute. 

"  A  court  acquires  jurisdiction  by  its 
own  process.  If  the  process  of  the  court 
be  executed  upon  the  person  or  thing 
concerning  which  the  court  are  to  pro- 
nounce judgment,  jurisdiction  is  acquired. 
The  writ  draws  the  person  or  thing  within 
the  power  of  the  court ;  the  court  once 
having  by  its  process  acquired  the  power 
to  adjudicate  upon  a  person  or  thing,  it 
has  what  is  called  jurisdiction.  This 
power  or  jurisdiction  is  acquired  only  by 
its  process.  To  give  jurisdiction  is  the 
object  of  process.  The  mode  of  execut- 
ing or  serving  process,  is  sometimes  di- 
rected or  permitted  to  be  by  notice  of 
publication.  All  process  issues  under  the 
seal  of  the  court.  Notice  by  publication 
is  not  process,  but,  in  certain  cases,  in  con- 
templation of  law,  is  equivalent  to  service 
of  process.  The  process  in  attachment  is 
the  writ  authorizing  and  directing  a  seiz- 
ure of  the  property.  No  process  is  issued 
against  the  person,  because  the  proceed- 
ing is  in  rem.  The  statute,  however,  re- 
gards it  but  just  that  notice  should  be 
given  to  the  debtor,  not  for  the  purpose 
of  giving  the  court  jurisdiction  over  the 
subject-matter,  but  to  permit  tlie  debtor 
to  have  an  opportunity  to  protect  his 
rights,  and  directs  that  the  writ  shall  be 
quashed  if  it  be  not  given.  The  distinc- 
tion is  between  a  lack  of  power  or  want 
of  jurisdiction  in  the  court,  and  a  wrong- 
ful or  defective  execution  of  the  power. 
In  the  first  instance,  all  acts  of  the  court 
not  having  jurisdiction  or  power,  are  void, 
—  in  the  latter,  voidable  only.    A  court, 


then,  may  act,  first,  without  power  or 
jurisdiction ;  second,  having  power  or 
jurisdiction,  may  exercise  it  wrongfully; 
or,  third,  irregularly.  In  the  first  in- 
stance, the  act  or  judgment  of  the  court 
is  wholly  void,  and  is  as  though  it  had 
not  been  done.  The  second  is  wrong,  and 
must  be  reversed  on  error.  The  third  is 
irregular,  and  must  be  corrected  by  mo- 
tion. The  latter  is  where  the  power  is 
rightfully  exercised,  but  in  an  irregular 
way.  Hence  there  is  a  vast  distinction 
between  a  defect  of  power,  a  wrongful 
exercise  of  power,  and  an  irregular  exer- 
cise of  power. 

"  Now  what  has  happened  in  this  in- 
stance *?  The  court  had  the  power,  by 
the  service  of  its  process,  to  proceed  and 
give  judgment ;  but  a  circumstance  oc- 
curred, after  having  acquired  such  power, 
which  forbade  them  the  exercise  of  it ; 
but  having  it,  they  did  exercise  it,  which 
was  error.  But  it  can  only  be  corrected 
by  a  writ  of  error. 

"  We  rest  the  case  nakedly,  upon  the 
ground,  so  far  as  the  proceedings  in  attach- 
ment are  concerned,  that  there  was  a 
judgment  of  a  court  of  competent  juris- 
diction, unreversed,  conferring  the  power 
to  sell  the  land  in  question,  which  can- 
not be  impeached  in  this  collateral  way  ; 
that  the  defects  and  irregularities  com- 
plained of  should  have  been  remedied  by 
writ  of  error,  or  motion." 

1  Beech  v.  Abbott,  6  Vermont,  586. 

2  Matter  of  Clark,  3  Denio,  167. 

*  Hardin  v.  Lee,  51  Missouri,  241 ; 
Freeman  v.  Thompson,  5.3  Ibid.  183  ;  Hol- 
land V.  Adair,  55  Ibid.  40;  Kane  v.  Mc- 
Cown,  Ibid.  181 ;  Johnson  v.  Gage,  57 
Ibid.  160. 

*  Gregg  V.  Thompson,  17  Iowa,  107. 

5  Crowell  V.  Johnson,  2  Nebraska,  146. 

6  Cooper  V.  Reynolds,  10  Wallace,  .308. 
•^  Clark  V.  Bryan,  16  Maryland,  171 ; 

Haywood  v.  Collins,  60  Illinois,  328. 

[357] 


§  4:49        NOTICE  TO  DEFENDANTS  BY  PUBLICATION.      [CHAP.  XVII. 

have  been  served  upon  any  of  the  defendants,  and  none  of  them 
shall  appear  in  the  suit,  the  plaintiff,  on  filing  an  alhdavit  of  the 
publication  of  the  notice  hereinbefore  required  for  six  successive 
weeks,  may  file  his  declaration  in  the  suit,  and  proceed  therein, 
as  if  a  copy  of  such  attachment  had  been  served  upon  the  de- 
fendants ;  "  it  was  held,  that  where  there  was  no  personal  ser- 
vice, the  publication  of  notice  was  necessary  to  enable  the  court 
to  obtain  jurisdiction,  and  no  judgment  was  valid  without  it,  and 
no  title  passed  through  a  sale  made  under  it.^  And  in  that  State, 
where  the  statute  required  the  notice  to  be  published  within 
thirty  days  after  the  return  day  of  the  writ,  it  was  held,  that  if 
the  publication  did  not  take  place  within  that  time,  though  it 
was  made  afterwards,  the  court  lost  jurisdiction,  and  the  attach- 
ment proceedings  were  void.^  And  in  Wisconsin,  strict  compli- 
ance with  the  requirements  of  the  law  in  regard  to  pubHcation  is 
considered  necessary  to  the  exercise  of  jurisdiction.  Therefore, 
where  the  statute  provided  that  "  in  all  cases  where  publication 
is  made,  the  complaint  shall  be  first  filed,  and  the  summons  as 
published  shall  state  the  time  and  place  of  such  filing,"  a  publi- 
cation made  before  the  complaint  was  filed,  was  held  not  to 
authorize  the  court  to  take  jurisdiction  of  the  action,  and  that  a 
judgment  rendered  upon  such  publication  was  void.^ 

§  448  a.  Where  the  law  required  the  clerk  issuing  an  order  of 
publication  to  designate  the  newspaper  in  which  the  order  should 
be  published,  it  was  held,  that  the  omission  of  the  clerk  to  make 
such  designation  would  not  authorize  the  collateral  impeachment 
of  the  judgment  in  the  attachment  suit.^ 

§  449.  But  where  no  process  is  served  on  the  defendant,  nor 
property  attached,  nor  garnishee  charged,  nor  appearance  en- 
tered, a  judgment  against  the  defendant,  based  on  a  publication 
of  the  pendency  of  the  suit  will  be  void,  and  may  be  impeached 
collaterally,  or  otherwise,  and  forms  no  bar  to  a  recovery  sought 
in  opposition  to  it,  nor  any  foundation  for  a  title  claimed  under 
it;^  notwithstanding  the  statute  law  of  the  State  expressly  au- 

1  King   V.    Harrington,   14   Michigan,  *  Kane  v.  McCown,  55  Missouri,  181. 
532.  5  Ante,  §  5 ;  Eaton  v.  Badger,  33  New 

2  Millar  v.  Babcock,  29  Michigan,  526.  Hamp.  228 ;  Carleton  v.  Washington  Ins. 

3  Anderson  v.  Coburu,  27  Wisconsin,  Co.,  35  Ibid.  162 ;  Smith  v.  McCutchen, 
558.  38   Missouri,  415;  Abbott  v.  Sheppard, 

[358] 


CHAP.  XVn.]      NOTICE  TO  DEFENDANTS  BY  PUBLICATION.    §  449  a 

thorize  a  judgment  to  be  rendered  against  a  defendant  under  such 
cii'cumstances.i  In  cases  of  this  description,  while  a  levy  on 
property  would  justify  the  exercise  of  jurisdiction,  and  the  gar- 
nishment of  one  indebted  to  the  defendant  would  be  regarded, 
pro  hae  vice,  as  equivalent  to  a  levy ,2  yet  the  indebtedness  of  the 
garnishee  must  be  shown;  and  a  judgment  rendered  against  a 
garnishee  who  does  not  appear  and  answer,  and  against  whom,  in 
such  case,  the  statute  authorizes  judgment  to  be  rendered  for  the 
whole  amount  of  the  judgment  against  the  defendant  without 
proof  of  his  indebtedness  to  the  defendant,  will  not  sustain  the 
jurisdiction.^ 

§  449  a.  In  cases  where  the  property  of  the  defendant  is  at- 
tached, but  no  service  of  process  is  had  upon  him,  and  pubhca- 
tion  is  made,  the  plaintiff  can  take  judgment  for  no  more  than 
the  amount  sworn  to  by  him  in  the  affidavit  for  obtaining  the 
attachment  and  interest  thereon,  if  it  be  an  interest-bearing  debt. 


44  Ibid.  273;  Bruce  v.  Cloutman,  45 
New  Hamp.  37 ;  Cooper  v.  Smith,  25 
Iowa,  269.  In  Kansas,  where  property 
was  attached,  but  the  slieriff's  return  did 
not  sliow  it  to  be  the  property  of  the 
defendant ;  and  there  was  no  service  of 
process  upon  the  defendant,  but  notice 
by  publication;  the  judgment  rendered 
in  the  case  was  held  to  be  void,  because 
such  notice  was  available  only  when  the 
plaintiff  sought  to  subject  the  defendant's 
property  to  the  payment  of  his  claim ; 
that  the  attachment  of  property  of  the 
defendant  must  affirmativelj'  appear ; 
and  that  the  return  did  not  show  that 
any  property  of  his  had  been  attached. 
Repine  v.  McPherson,  2  Kansas,  340. 

1  Pennoyer  v.  Neff,  95  United  States, 
714. 

2  Thompson  v.  Allen,  4  Stewart  & 
Porter,  184. 

8  Haggerty  v.  Ward,  25  Texas,  144. 
The  court  said :  "  It  is  said  to  be  well 
settled  that  a  judgment  against  the  de- 
fendant is  an  indispensable  prerequisite 
to  a  judgment  against  tlie  garnishee.  In 
the  present  case  the  failure  of  the  gar- 
nishee to  answer  is  treated  as  furnishing 
a  presumption  of  indebtednese  by  the 
garnishee  to  the  defendant,  equivalent 
to  the  service  of  the  attachment  upon 
the  property  or  credits  of  the  defendant, 


and  giving  the  court  jurisdiction  to  ren- 
der judgment  against  the  defendant ;  and 
thus  the  judgment  against  the  defendant, 
which  is  an  indispensable  prerequisite  to 
the  judgment  against  the  garnishee,  is 
obtained  ;  and  then  the  judgment  against 
the  defendant  is,  in  its  turn,  made  the 
measure  of  the  liability  of  the  garnishee. 
Now  the  judgment  against  the  defendant 
was  rendered  at  a  time  when  the  law 
raised  no  conclusive  presumption  that 
the  garnishee  was  indebted  to  the  de- 
fendant ;  because,  although  the  garnishee 
had  failed  to  answer,  it  was  his  privilege 
to  be  again  called  into  court,  and  when 
so  called  in,  he  would  be  permitted  to 
show  in  answer  to  the  scire  facias  any 
thing  that  he  might  have  shown  if  he 
had  come  into  court  in  the  first  instance, 
or  any  thing  that  he  might  show  in  an 
action  by  the  defendant  against  him. 
The  judgment  against  the  defendant  was, 
therefore,  rendered  at  a  time  when  the 
court  had  no  jurisdiction  to  render  such 
a  judgment.  The  fact  of  the  indebted- 
ness of  tlie  garnishee  to  the  defendant 
was  not  ascertained,  and  was  not  shown 
to  the  court  in  any  such  conclusive  man- 
ner as  to  authorize  tlie  court  to  treat  the 
fact  as  ascertained,  and  to  make  it  the 
basis  of  jurisdiction." 

[359] 


§  449  rt   NOTICE  TO  DEFENDANTS  BY  PUBLICATION.      [CHAP.  XVH. 

and  costs.i  And  in  such  cases,  if  the  property  attached  be  not 
sufficient  to  satisfy  the  judgment  obtained,  a  further  suit  to  re- 
cover the  balance  can  only  be  maintained  on  the  original  cause 
of  action  ;  and  in  such  further  suit,  the  defendant  may  set  up 
and  rely  upon  any  defence  he  could  have  interposed  had  no  suit 
by  attachment  been  brought ;  and  the  plaintiff  cannot  conclude 
the  defence  by  producing  the  judgment  in  the  attachment  suit. 
That  judgment  is  only  conclusive  of  the  fact  that  such  a  pro- 
ceeding was  had.2 

1  Henrie  v.  Sweasey,  5  Blackford,  273 ;  Rowley  v.  Berrian,  12  Illinois,  198  ;  Hob- 
son  V.  Emporium  R.  E.  &  M.  Co.  42  Ibid.  306  ;  Forsyth  v.  Warren,  62  Ibid.  68. 

2  Bliss  V.  Heasty,  61  Illinois,  338.    See  ante,  §  5. 

[360] 


CHAP.  XVIII.]      GAENISH3IENT.  —  GENERAL  VIEWS.  §  451 


CHAPTER    XVIII.     ' 

GARNISmiENT.  —  GENERAL  VLEWS.— DIVISION  OF  THE  SUBJECT. 

§  450.  We  come  now  to  that  operation  of  an  attachment, 
whereby  property  that  cannot  be  seized  may  be  reached  by  the 
process,  and  debts  due  to  the  defendant  may  be  subjected  to  the 
payment  of  his  debts.  This  is  the  sole  and  distinctive  feature  of 
attachment  by  the  custom  of  London,  from  which,  as  before  re- 
marked, have  sprung  the  systems  of  attachment  laws  in  the 
United  States. 

§  451.  The  peculiar  operation  of  the  process,  by  which  effects 
of  the  defendant  which  cannot  be  seized  and  taken  into  custody 
may  still  be  rendered  liable  to  the  payment  of  his  debts,  has 
received  the  designation  of  garnishment,^  or  warning,  and  the 
person  in  whose  hands  such  effects  are  attached  is  styled  a  gar- 
nishee, because  of  his  being  garnished,'^  or  warned,  not  to  pay  the 
money  or  deliver  the  property  of  the  defendant  in  his  hands  to 
him,  but  to  appear  and  answer  the  plaintiff's  suit.^  This  desig- 
nation exists  in  all  the  States,  except  those  of  New  England, 
where  the  party  so  warned  is  called  a  trustee,  and  the  process 
under  which  he  is  warned  is  called  trustee  process.  In  Vermont 
and  Connecticut,  he  is  also  sometimes  called  a  factor,  and  the 
process,  factorizing  process.  The  terms  garnishment  and  garnishee 
being,  however,  so  nearly  of  universal  use,  will  be  retained 
throughout  this  work. 

1  In  Kelham's  Norman  Dictionary  the  avoided  the  very  prevalent  corruption  of 
original  of  this  term  is  given,  as  follows  :  it  into  "  garnishced,"  which  disfigures 
Garnkr,  garnisher,  to  warn,  to  sum-  the  Reports  of  this  country.  I  have, 
mons.  Garnishement,  garnissement,  with  equal  care,  shunned  the  displace- 
GARNisHANT,  GARNEYSEiNT,  wamiug,  mcut  of  the  words  "  garnish  "  and  "  gar- 
summons,  notice,  nishing,"   by   "garnishee^"   (used    as    a 

2  This  being  the  first  instance  of  the  verb),  and  "  garnisheeing." 

use  of  this  word  in  tliis  book,  I  deem  it  ^  Priv.   Londini,   256 ;   Comyns's  Di- 

proper  to  remark,  that  I  have  studiously     gest,  Attachment,  E. 

^  [361] 


§  451  a  GAENISHMENT.  —  GENERAL   VIEWS.       [CHAP.  XVIII. 

§  451  a.  Throughout  the  United  States  garnishment  is  a  purely 
statutoiy  proceeding,  and  cannot  be  pushed  in  its  operation  be- 
yond the  statutory  authority  under  which  it  is  resorted  to.  Thus, 
unless  the  statute  expressly  so  provide,  no  effects  of  the  defend- 
ant coming  into  the  garnishee's  hands,  or  indebtedness  accruing 
from  the  garnishee  to  the  defendant,  after  the  garnishment,  are 
bound  thereby.^  So,  if  a  garnishee  die  before  he  has  answered, 
his  administrator  cannot  be  required,  unless  by  express  statute,  to 
take  his  place  and  answer  the  interrogatories  propounded  by  the 
plaintiff.^  So,  where  a  Safe  Deposit  Company  was  summoned  as 
garnishee  of  one  who  rented  a  safe  in  its  vaults,  the  contents  of 
which  did  not  appear  ;  and  the  court  was  asked  to  order  the  gar- 
nishee to  open  the  safe  and  file  an  inventory  of  its  contents  ;  the 
order  was  refused  because  there  was  no  authority  in  the  court 
for  such  a  proceeding.^  So,  where  a  bank  was  garnished,  in 
whose  vault  was  a  small  trunk,  deposited  there  by  the  defendant, 
of  the  contents  of  which  no  officer  of  the  bank  had  any  knowl- 
edge ;  it  was  held,  that  the  garnishee  could  not  be  charged,  be- 
cause it  did  not  appear  that  the  trunk  contained  attachable 
effects  ;  and  the  court,  while  recognizing  the  English  doctrine,  that 
an  officer,  in  the  service  of  an  execution,  may  break  open  the  de- 
fendant's private  trunk,  for  the  purpose  of  selling  the  contents,  if 
they  are  liable  to  execution,  yet  said  that  the  officer  must  first  obtain 
lawful  possession  of  the  trunk ;  and  to  that  the  court  could  not  help 
him  in  the  pending  case.^  So,  where  it  was  sought  to  charge  one 
as  garnishee  of  A.,  on  account  of  a  debt  due  from  the  garnishee  to 
the  firm  of  A.  &  B.,  and  the  court  was  asked  to  cite  A.  and  B.  to 
appear  and  litigate  their  respective  rights  in  the  debt,  so  as  to 
enable  the  plaintiff  to  show  that,  in  fact,  B.  had  no  interest  in 


1  Bliss  V.  Smith,  78  Illinois,  359  ;  Hoflf-  to  enable  the  sheriff  to  execute  the  writ, 
man  r.  Fitzwilliam,  81  Ibid.  521.  United  States  v.  Graff,  67  Barbour,  304. 

2  Tate  V.  Morehead,  65  North  Caro-  *  Bottom  v.  Clarke,  7  Gushing,  487. 
Una,  681.  See  Welch  v.  Gurley,  2  Hay-  But  in  Georgia,  where  a  box  was  de- 
wood  (N.  C.),  334;  Gee  v.  Warwick,  posited  by  the  defendant  in  the  gar- 
Ibid.  354.  nishee's  store,  without  any  liability  being 

3  Gregg  V.  Nilson,  1  Legal  Gazette  R.  assumed  by  the  latter  in  reference  to  it ; 
128 ;  8  Philadelphia,  91.  In  New  York,  and  after  the  garnishment  he  permitted 
an  order  by  the  court  to  the  sheriff  to  the  defendant  to  remove  it ;  he  was 
open  a  safe  and  tin  box  in  possession  of  charged  as  garnishee  for  the  value  of  its 
such  a  company,  and  in  which  it  was  contents,  upon  the  value  being  proved, 
claimed  that  there  was  property  of  the  Loyless  v.  Hodges,  44  Georgia,  647. 
defendant,  was   sustained,  as  necessary 

[362] 


CHAP.  XVni.]       GARNISHMENT.  —  GENERAL   VIEWS.  §  451  h 

the  debt,  the   request  was  refused,  because  the  attachment  law 
did  not  authorize  such  a  proceeding.^ 

§  451  h.  Garnishment  rests  wholly  upon  judicial  process,  and 
depends  upon  the  due  pursuit  of  the  steps  prescribed  by  law  for 
its  prosecution.  It  can  borrow  no  aid  from  volunteered  acts  of 
the  garnishee.  Such  acts  will  be  regarded  as  void,  so  far  as  they 
interfere  with  the  rights  of  third  parties.  Thus  where,  under  a 
law  requiring  the  garnishment  process  to  be  personally  served  on 
the  garnishee,  one  acknowledged  and  accepted  service  by  writing 
on  the  petition,  it  was  held,  that  he  had  no  right  to  do  so,  and 
that  the  acceptance  or  waiver  of  service  was  a  nullity,  as  against 
other  attaching  creditors  ;  ^  and  equally  so  as  against  an  assignee 
of  the  debt  in  respect  of  which  the  garnishee  was  charged.^  So, 
where  the  statute  prescribed  that  process  should  be  served  on  a 
corporation  by  service  on  the  president,  or  any  director  or  mana- 
ger thereof,  an  admission  of  service  of  garnishment  by  the  at- 
torney of  a  corporation  was  held  insufficient  to  give  the  court 
jurisdiction  of  the  corporation.*  So,  where  a  garnishment  was 
made  after  the  return  day  of  the  writ,  and  the  garnishee  appeared 
and  answered,  and  judgment  was  rendered  against  him  ;  it  was 
decided,  that  the  process  under  which  he  was  summoned  had  no 
validity ;  that  he  therefore  stood  as  though  he  had  voluntarily 
appeared  and  answered  interrogatories  without  notice ;  and  the 

1  Sheedy   v.   Second    Nat.   Bank..    62  Mississippi  a  case  is  reported  where  there 

Missouri,  17.  was  no  service  of  process  upon  the  gar- 

'^  Schindler    v.   Smith,   18    Louisiana  nishee,  but  he  appeared  and  answered, 

Annual,   476.     The   court    said  :    "  Tlie  and  the  court  took  action  on  his  answer ; 

garnishee,  in  the  eyes  of  the  law,  is  a  but  it  does  not  appear  tliat  any  question 

mere   stakeholder,   a  custodian    of    tlie  as  to  the  legality  of  the  proceeding  was 

property  attached  in  his  hands ;  he  has  raised ;  and  the  case  cannot  therefore  be 

no  pecuniary  interest  in  the  matter ;  he  considered  as  militating  against  the  posi- 

has  no  cost  to  pay,  and  therefore  none  to  tion  taken  in  the  text.     Roy  v.  Heard,  38 

save  ;  his  business  is  to  let  the  law  take  Mississippi,  644.    In  Vermont,  where  the 

its  course  between  the  litigants;  he  has  " trustee  process  "  has  the  character  and 

no  right  to  accept  or  waive  service  of  effect  of  a  summons,  it  was  decided  that 

the    proceeding,    thereby    favoring    one  service  thereof  on  a  trustee  [garnishee] 

party  at  the  expense  and  injury  of  an-  by  his  accepting  service,  is  valid  to  hold 

other,  and  creating  actually  a  privilege  the  funds  in  his  hands  as  against  a  sub- 

with  priority  in  favor  of  one  creditor  to  sequent  assignee.      Gaboon   v.   Morgan, 

tlie  prejudice  of  another."     See  Citizens  38  Vermont,  234. 

Bank  v.   Payne,   21   Louisiana  Annual,  ^  Hebel  v.  Amazon  Ins.  Co.,  33  Michi- 

380;  Hodges   v.  Graham,  25  Ibid.  365;  gan,  400. 

Phelps  (A  Boughton,  27  Ibid.  592;  Wood-  ''Northern  Central  K.   Co.  v.  Rider, 

folk  V.  Wliitworth,  5  Coldwell,  561.     In  45  Maryland,  24. 

[363] 


§  452  GARNISHMENT.  —  GENERAL   VIEWS.       [CHAP.  XVIII. 

judgment  against  him  was  set  aside  as  against  other  creditors.^ 
But  wliere  a  writ  was  issued  on  the  28th  of  April,  and  named  as 
the  return  day  April  10th  of  the  same  year,  and  the  garnishee 
appeared  and  answered  on  the  10th  of  May ;  it  was  held,  that 
the  return  day  named  in  the  writ  was  obviously  a  mere  clerical 
error  which  did  not  invalidate  the  proceedings,  and  that  the  ap- 
pearance and  answer  of  the  garnishee  was  a  waiver  of  the  error.^ 

§  451  c.  Garnishment  is  a  process,  not  a  pleading,  and  serves 
its  purpose  when  it  brings  the  garnishee  before  the  court.  If 
there  are  defects  in  the  process,  they  are  the  subject  of  a  motion 
to  quash,  or  of  a  plea  in  abatement,  and  cannot  be  reached  by 
demurrer.^ 

§  451  d.  In  garnishment  (as  we  have  seen  is  the  case  where 
an  attachment  is  levied  on  property  ^)  it  is  the  return  of  the  offi- 
cer upon  the  writ  which  constitutes  the  attachment  of  the  debt 
due  from  the  garnishee  ;  and  the  proceeding  will  fail  if  the  return 
do  not  show  a  garnishment  in  conformity  to  the  statute.  Thus, 
where  the  statute  required  the  officer,  when  a  garnishee  is  to  be 
summoned,  to  "  declare  to  the  person  in  possession  of  goods, 
chattels,  money,  and  evidences  of  debt,  that  he  attaches  the 
same  in  his  hands,"  and  the  officer  returned  that  he  had  "served 
the  writ  by  summoning  A.  as  garnishee,  to  appear  and  answer 
touching  his  indebtedness  to  B.,  the  defendant ;  "  the  return  was 
held  insufficient,  and  the  writ  was  quashed.^ 

§  452.  Garnishment  is  in  the  nature  of  a  proceeding  in  rem^ 
since  its  aim  is  to  invest  the  plaintiff  with  the  right  and  power  to 
appropriate,  to  the  satisfaction  of  his  claim  against  the  defendant, 
property  of  the  defendant's  in  the  garnishee's  hands,  or  a  debt 
due  from  the  garnishee  to  the  defendant.*^  It  is,  in  effect,  a  suit 
by  the  defendant,  in  the  plaintiffs  name,  against  the  garnishee, 
without  reference  to  the  defendant's  concurrence,  and,  indeed,  in 

1  Southern  Bank  v.  McDonald,  46  Mis-  «  In  Strong  v.  Smith,  1  Metcalf,  476, 
souri,  31.  See  Desha  v.  Baker,  3  Arkan-  the  Supreme  Court  of  Massachusetts 
sas,  509.  said :  "  The  trustee  process  operates  as  a 

2  Wellover  v.  Soule,  30  Micliigan,  481.  species  of  compulsory  statute  assignment, 

3  Curry  v.  Woodward,  50  Alabama,  by  which  a  creditor  may  obtain  that  by 
2.58.  operation  of  law  which  his  debtor  might 

4  Ante,  §  206.  voluntarily  assign  to  him,  in  payment  of 
•5  Norvell  v.  Porter,  62  Missouri,  309.       his  debt." 

[364] 


CHAP.  XVIII.]       GARNISHMENT.  —  GENERAL   VIEWS.  §  452 

opposition  to  his  will.  Hence  the  plaintiff  usually  occupies,  as 
against  the  garnishee,  just  the  position  of  the  defendant,  with  no 
more  rights  than  the  defendant  had,  and  Uable  to  be  met  by  any 
defence  which  the  garnishee  might  make  against  an  action  by 
the  defendant.!  Where,  however,  the  garnishee  holds  property 
of  the  defendant  under  a  fraudulent  transfer  or  arrangement,  the 
right  of  the  plaintiff  to  hold  the  garnishee  is  not  limited  by  the 
defendant's  right  against  the  latter.  And  there  are  other  cases, 
as  we  shall  hereafter  see,  in  which  a  garnishee  may  be  held, 
though  the  defendant  could  not  at  the  time  of  the  garnishment 
maintain  an  action  against  him.^ 

Garnishment  is  not  only  in  effect  a  suit  by  the  defendant  in  the 
plaintiff's  name  against  the  garnishee,  but  it  has  been  held  to  be 
in  fact,  a  suit,  in  the  legal  acceptation  of  the  term.     In  Alabama, 
garnishment  was  regarded  as  a  suit,  where  an  administrator  was 
garnished  within  six  months  after  grant  of  letters  of  administra- 
tion, and  the  proceeding  was  objected  to,  because  of  a  statutory 
provision  which  declared  that  "  no   suit   must   be  commenced 
against  an  administrator  as  such,  until  six  months  after  the  grant 
of    letters    of  administration."  ^     In   the    Circuit  Court  of  the 
United  States  for  Arkansas,  the  question  came  up  in  this  shape. 
A.,  a  citizen  of  Arkansas,  recovered   judgment   in   that  court 
against  B.,  a  citizen  of  Texas,  and  issued  execution  thereon,  under 
which,  in  conformity  with  a  statute  of  Arkansas,  C,  a  citizen  of 
that   State,    was  summoned   as   garnishee.     The   question   was 
whether,  as  the  plaintiff  and  the  garnishee  were   citizens  of  the 
same  State,  the  court  had  jurisdiction  of  the  proceeding.     If  the 
garnishment  was  a  suit,  it  came  within  the  provision  prohibiting 
the  court  from  taking  jurisdiction  of  a  suit  between  citizens  of 
the  same  State.     The  court,  in  the  following  terms,  held  it  to 
be  a  suit:  "  The  proceeding  must  be  regarded  as  a  civil  suit,  and 
not  as  a  process  of  execution  to  enforce  a  judgment  already  ren- 
dered.    It  may  be  used  as  a  means  to  obtain  satisfaction  of  a  de- 
mand, in  the  same  manner  as  a  suit  may  be  resorted  to  on  a  judg- 
ment of  another  State,  with  a  view  to  coerce  the  payment  of  such 

1  Daniels  v.  Clark,  38  Iowa,  556.  Gorman    v.   Swaggerty,  4    Sneed,   560 ; 

2  Post,  §  464.  Jones  v.  New   York  &  Erie  R.   R.  Co., 

3  Moore  v.  Stainton,  22  Alabama,  831 ;  1  Grant,  457  ;  Malley  v.  Altaian,  14  Wis- 
Travis  v.  Tartt,  8  Ibid.  574  ;  Edmonson  consin,  22 ;  Caldwell  v.  Stewart,  30  Iowa, 
V.  DeKalb  County,  51  Ibid.  103.  See  379;  Delacroix  v.  Hart,  24  Louisiana 
Thorn   v.   Woodruff,    5    Arkansas,    65;  Annual,  141. 

[365] 


§  453  GARNISIOIENT.  —  GENEEAL  VIEWS.      [CHAP.  XVIII. 

judgment.  In  this  proceeding  the  parties  have  day  in  court ;  an 
issue  of  fact  ma}^  be  tried  by  a  jury,  evidence  adduced,  judgment 
rendered,  costs  adjudged,  and  execution  issued  on  the  judgment. 
It  is  in  every  respect  a  suit,  in  which  the  primary  object  is  to  ob- 
tain judgment  against  the  garnishee,  and  certainly  cannot  with 
any  pkiusibility  be  treated  as  process  of  execution,  or  as  part  of 
the  execution  process ;  for  if  so,  there  could  be  no  necessity  or 
propriety  in  resorting  to  this  forum  to  investigate  the  relations  of 
debtor  and  creditor."  ^ 

§  453.  Garnishment  is  an  effectual  attachment  of  the  effects  of 
the  defendant  in  the  garnishee's  hands,^  differing  in  no  essential 
respect  from  attachment  by  levy,  except,  as  is  said,  that  the 
plaintiff  does  not  acquire  a  clear  and  full  lien  upon  the  specific 
property  in  the  garnishee's  possession,  but  only  such  a  lien  as 
gives  him  the  right  to  hold  the  garnishee  personally  liable  for  it 
or  its  value,^  and  to  restrain  the  garnishee  from  paying  his  debt 
to  the  defendant.^  The  defendant's  rights  in  the  property  in  the 
garnishee's  hands  are  so  far  extinguished,  as  to  prevent  the 
defendant's  making  any  disposition  of  it  which  would  interfere 
with  its  subjection  to  the  payment  of  the  plaintiffs  demand,  when 
that  shall  have  been  legally  perfected  ;  but  for  every  purpose  of 
making  any  demand  which  may  be  necessary  to  fix  the  garnishee's 
liability  to  him,  or  of  securing  it  by  legal  proceedings  or  other- 
wise, his  rights  remain  unimpaired  by  the  pending  garnishment, 

1  Tunstall  v.  Worthington,  Hempstead,  stated  in  the  text  is  tlie  more  proper  one. 

662.     Sed  contra,   Kidderlin   v,   Myer,  2  In  Illinois  it  was  held,  that  garnishment 

Miles,  242.  imposes  no  lien  upon  the  effects  in  the 

^  Kennedy   v.   Brent,  6  Cranch,  187 ;  garnishee's  hands,  and  does  not  put  them 

Parker  v.  Kinsman,  8  Mass.  436  ;  Blaisdell  in  custodia  legis.     Bigelow  v.  Andress,  31 

V.  Ladd,  14  New  Hamp.  129 ;  Burhngame  Illinois,  322.     In   South  Carolina,  on  the 

V.  Bell,  16  Mass.  318  ;  Swett  v.  Brown,  other  hand,  the  Court  of  Appeals  said : 

5  Pick.  178  ;  Tindell  v.  Wall,  Busbee,  3  ;  "  Our  opinion  is,  that  an  actual  seizure  is 

Tillinghast  v.  Johnson,  5  Alabama,  514  ;  notessential  to  create  the  attachment  lien, 

Thompson  v.  Allen,  4  Stewart  &  Porter,  but  that  the  service  of  the  writ  on  one  in 

184  ;    Bryan   v.   Lashley,    13    Smedes   &  whose  custody  or  control  the  assets  of  the 

Marshall,  284;  Watkins   v.  Field,  6   Ar-  absent  debtor  may  be,  is  sufficient  to  make 

kansas,  391 ;  Martin  v.  Foreman,  18  Ibid,  the  whole  assets  in  his  hands  secure  and 

249  ;  Hacker  v.  Stevens,  4  McLean,  535.  liable  in   law,  to  answer  any  judgment 

3  Walcott  V.  Keith,  2  Foster,  196  ;  that  shall  be  secured  and  awarded  upon 
Moore  v.  Holt,  10  Grattan,  284 ;  Johnson  that  process."  Renneker  v.  Davis,  10 
V.  Gorham,  6  California,  195.  It  is  a  Richardson  Eq.  289.  In  Vermont,  gar- 
common  expression  by  courts,  that  by  nishment  was  termed  an  "  inchoate  lien." 
garnishment  the  plaintiff  acquires  a  lien  Wilder  v.  Weatherhead,  32  Vermont,  765. 
on  the  debt  due  from  the  garnishee  to  *  Parker  v.  Farr,  2  Browne,  331 ; 
the  defendant ;  but  perhaps  the  view  Parker  v,  Parker,  2  Hill  Ch'y,  35. 
[366] 


CHAP.  XVni.]      GARNISHMENT.  —  GENERAL  VIEWS.  §  453  a 

but  of  course  can  be  exercised  only  in  subordination  to  the  lien 
thereby  created.^  From  the  time  of  the  garnishment,  the  effects 
in  the  garnishee's  possession  are  considered  as  in  custodia  legis^ 
and  the  garnishee  is  bound  to  keep  them  in  safety,  and,  it  was 
said  by  the  Supreme  Court  of  the  United  States,  is  not  at  liberty 
to  change  them,  to  convert  them  into  money,  or  to  exercise  any 
act  of  ownership  over  them.^  He  acquires  a  special  property  in 
them,  as  agent  of  the  court,^  and  is  entitled  to  hold  them,  until 
the  question  of  his  liability  is  determined,  as  well  against  the  de- 
fendant as  against  any  subsequent  purchaser  or  pledgee  ;  *  even 
though  the  attachment  be  against  a  person  other  than  the  osten- 
sible owner  from  whom  the  garnishee  received  them.^  He  has 
no  right  to  return  to  the  defendant  any  of  the  effects  of  the  latter 
which  were  in  his  hands  when  he  was  garnished,  or  which  came 
into  them  afterwards,  if  the  attachment  legally  binds  effects  sub- 
sequently received  by  him  ;  ^  nor  can  they  be  lawfully  levied  on 
and  taken  out  of  his  possession  ; "'  but  if  that  should  be  done,  the 
officer  seizing  must  hold  them  subject  to  the  lien  of  the  creditor 
who  effected  the  garnishment.^  If  so  taken,^  or  if  taken  from 
him  by  a  wrong-doer,^^  it  will  not  discharge  the  garnishee's  lia- 
bility ;  but  it  may  furnish  ground  for  delaying  proceedings  until 
damages  can  be  recovered  of  the  party  taking  them.^^  But  if  the 
garnishing  plaintiff  cause  a  levy  and  sale  under  execution  to  be 
made  of  the  property,  he  cannot  afterwards  hold  the  garnishee  in 
respect  thereof.^^ 

§  453  a.  The  position  assumed  by  the  Supreme  Court  of  the 
United  States,  as  stated  in  the  next  preceding  section,  that  the 
garnishee  is  bound  to  keep  the  effects  in  his  hands  safely,  and  is 

1  Hicks  V.  Gleason,  20  Vermont,  139;  99;  Parker  v.  Parker,  2  Hill  Ch'y,  35; 

Bank  of  the  State  of  Missouri  v.  Bredovr,  Loyless  v.  Hodges,  44  Georgia,  647. 

31  Missouri,  523.  '  Scholefield  v.  Bradlee,  8  Martin,  495 ; 

^  Brashear  v.   West,   7    Peters,   608  ;  Erskine  v.  Staley,  12  Leigh,  406. 

Mattingly  v.  Boyd,  20  Howard  Sup.  Ct.  8  Burlingame  v.  Bell,  16  Mass.  318 ; 

128;  Biggs  v.  Kouns,  7  Dana,  405.     See  Swett  v.  Brown,  5  Pick.  178. 

Staniels   v.   Raymond,    4   Gushing,   314,  9  Parker  v.  Kinsman,  8  Mass.  436. 

where,  under  the  Massachusetts  statute,  ^0  Despatch  Line  v.  Bellamy  Man.  Co., 

a  view  is  entertained,  which,   so  far  as  12  New  Hamp.  205. 

that  State  is  concerned,  materially  mod-  ii  Despatch  Line  v.  Bellamy  Man.  Co., 

ifies  the  garnishee's  position.  12  New  Hamp.  205. 

3  Erskine  v.  Staley,  12  Leigh,  406.  12  Goddard  v.  Hapgood,  25  Vermont, 

<  Walcott  V.  Keith,  2  Foster,  196.  351 ;    Clapp   v.  Rogers,  38  New  Hamp. 

6  Stiles  V.  Davis,  1  Black,  101.  435. 


Aldrich  v.  Woodcock,  10  New  Hamp. 


[367] 


§  453  a  GARNISHMENT.  —  GENERAL   VIEWS.       [CHAP.  XVIII. 

not  at  liberty  to  change  them,  to  convert  them  into  money,  or  to 
exercise  any  act  of  ownership  over  them,  must  be  understood  with 
reference  to  the  facts  of  the  case  before  that  court.  There  the 
property  in  the  garnishee's  hands  was  merchandise  ;  concerning 
which,  in  the  particular  case,  the  position  taken  was  undoubtedly 
correct.  But  that  rule  is  not  capable  of  universal  application. 
Thus,  where  goods  were  consigned  to  a  factor  for  sale,  on  which 
he  had  made  advances,  and  after  making  them  he  was  summoned 
as  garnishee  of  the  consignor ;  the  question  was  as  to  the  amount 
for  which  he  should  be  charged.  At  the  time  of  the  garnishment 
the  goods  were  worth  |1,856  ;  but  he  thereafter  sold  them  for 
$1,260.  No  fraud  in  the  sale  was  alleged.  The  plaintiff  contended 
that  the  former  sum  should  be  the  measure  of  the  garnishee's 
liability :  which  brought  up  the  question  whether  the  garnishment 
arrested  the  factor's  power  to  sell  the  goods.  If  it  did,  the  lia- 
bility of  the  garnishee  was  for  the  larger  sum  ;  otherwise  for  the 
smaller.  It  was  held,  that  the  power  of  sale  was  not  cut  off.^ 
And  where  the  attachment  of  cJioses  in  action  is  authorized  by 
statute,  the  rule  laid  down  by  the  Supreme  Court  of  the  United 
States  would  hardly  seem  capable  of  strict  application.  In  Mis- 
souri this  is  authorized,  and  a  garnishee  may  there  be  charged  in 
respect  of  choses  in  action  in  his  hands  belonging  to  the  defend- 
ant. In  a  case  which  arose  there,  a  bank  was  summoned  as  gar- 
nishee, having  in  its  possession,  for  collection,  a  bill  of  exchange 
belonging  to  the  defendant,  upon  which  it  brought  suit  against 

1  Baughu.  Kirkpatrick,  54  Penn.  State,  himself  have  to  say  to  the  garnishee, '  you 
84.  The  court  said  :  "  It  is  contended  the  shall  not  sell,'  without  tendering  hira  his 
attachment  arrested  their  power  to  sell,  advances  and  making  him  whole  1  Even 
leaving  the  goods  tied  up  in  their  hands,  an  execution  cannot  be  levied  of  goods  in 
We  cannot  assent  to  this.  We  are  bound  pawn,  so  as  to  take  them  out  of  the 
to  take  notice  of  the  general  usages  gov-  pawnee's  possession,  without  tendering 
erning  the  contracts  of  factors  and  com-  him  the  money  for  which  he  holds  them 
mission  merchants.  By  the  order  to  sell,  in  pledge.  So  here  the  garnishees,  as 
and  advances  made  by  the  factors,  an  in-  factors  to  sell,  having  made  advance- 
terest  was  acquired  in  the  goods  with  a  ments,  had  a  power  coupled  with  an  in- 
right  to  sell  which  could  not  be  aliected  terest,  which  was  irrevocable  except  upon 
by  an  after-attachment.  It  would  be  de-  a  tender  of  their  charges.  Added  to  the 
leterious  to  trade,  and  the  rights  of  those  injury  to  them  by  protracted  storage,  a 
engaged  in  it,  to  hold  that  goods  for-  fall  in  price  might  leave  their  advances 
warded  to  a  factor  to  be  sold,  may  be  tied  partially  unprotected.  If  the  plaintiff 
up  in  his  hands  until  the  creditor  of  the  was  desirous  to  retain  the  goods  for  an 
consignor  is  ready  to  proceed  with  his  ex-  advance  in  price,  it  was  his  duty  to  fur- 
ecution  to  convert  them.  .  .  .  The  attach-  nish  the  money  to  reheve  them  of  the 
ing  creditor  stands  upon  no  higher  footing  lien  of  the  garnishees,  and  to  direct  the 
than  his  debtors  in  relation  to  the  gar-  sheriff  to  take  them  into  custody." 
nishee.  What  right  would  the  debtor 
[368] 


CHAP.  XVIII.]      GARNISHMENT.  —  GENERAL  VIEWS.  §  454 

the  acceptor,  who  set  up  the  garnishment  of  the  bank  as  a  bar  to 
its  right  to  maintain  an  action  on  the  bill ;  but  it  was  held,  that 
the  bank's  right  of  action  was  not  lost  by  the  fact  of  the  gar- 
nishment.^ 

§  453  h.  Garnishment  cannot  be  extended  in  its  operation 
beyond  the  mere  point  of  reaching  the  defendant's  effects  in  the 
garnishee's  hands.  It  creates  no  lien  on  the  real  or  personal 
estate  of  the  garnishee.  A  judgment,  therefore,  against  the  per- 
sonal representatives  of  a  garnishee,  who  had  died  during  the 
pendency  of  the  proceedings,  does  not  relate  back  to  the  time  of 
serving  the  attachment,  nor  bind  the  garnishee's  estate ;  ^  nor 
does  it  give  the  attaching  creditor  a  preference  over  other  cred- 
itors of  the  garnishee's  estate.^ 

§  454.  Garnishment  cannot  be  supplemented  by  injunction  or 
other  proceeding  in  equity,  nor  can  any  distinct  proceeding,  not 
authorized  by  statute,  be  based  on  the  garnishment,  to  obtain 
security  for  the  payment  of  the  judgment  which  may  be  recovered 
against  the  garnishee.  Thus  where,  in  a  proceeding  in  chancery, 
certain  parties  were  garnished,  and  afterwards  the  complainant 
filed  a  supplemental  bill,  suggesting  that  they  were  bankrupt, 
and  had  sent  large  quantities  of  their  goods  to  certain  parties  for 
sale  at  auction,  and  that,  if  the  proceeds  of  the  sale  of  the  goods 
should  be  paid  to  the  garnishees,  they  would  contrive  so  to  dispose 
of  them,  that  the  complainant  would  lose  all  benefit  of  the  decree  ; 
and  the  court  thereupon  granted  a  restraining  order  on  the  auc- 
tioneers ;  and  upon  their  answering,  showing  the  balance  remain- 
ing in  their  hands,  they  were,  on  the  final  hearing,  decreed  to  pay 
it  to  the  complainant ;  it  was  held,  that  the  proceeding  was  un- 
authorized.^ So  where,  in  a  suit  in  favor  of  A.  against  B.,  in  a 
Circuit  Court  of  the  United  States,  C.  was  garnished;  against 
whom  a  suit  by  B.  was  then  pending  in  a  State  court,  in  which 
judgment  was  afterwards  rendered,  and  execution  issued  thereon, 
against  C. ;  and  thereupon  A.  sought  an  injunction  to  restrain 
proceedings  under  the  execution  until  C.  should  answer  in  the 
United  States  court,  and  the  question  of  his  liability  as  garnishee 
should  be  passed  upon  by  that  court ;  the  injunction  was  refused, 

^  Bank  of  the  State  of  Missouri  v.  Bre-  '^  Parker  v.  Farr,  2  Browne,  331. 

dow,  31  Missouri,  b'li.  *  Wolf  y.  Tappau,  5  Dana,  361. 
^  Parker  v.  Parker,  2  Hill  Ch'y,  35. 

24  [369] 


§  454  h  GARNISHMENT.  —  GENERAL   VIE\YS.      [CHAP.  XVIII. 

not  only  because  the  jurisdiction  of  the  State  court  had  first  at- 
tached, but  because  it  was  no  case  for  equitable  interposition  in 
aid  of  the  gavnishnient.^  And  it  has  likewise  been  held,  that  gar- 
nishment will  not  sustain  a  bill  in  equity  to  restrain  the  garnishee 
from  disposing  of  tlie  defendant's  property  in  his  hands,  until  the 
plaintiff  could  obtain  judgment  and  execution  against  the  gar- 
nishee.2  Much  less  is  there  any  authority  for  a  Court  of  Chan- 
cer}'-  to  attacli  a  debt  due  to  a  debtor  of  the  defendant,  and  apply 
it  to  the  payment  of  the  defendant's  debt.^  And  under  a  judg- 
ment rendered  against  one  as  garnishee,  out  of  whom  nothing  can 
be  made  on  execution,  it  is  held  in  Illinois,  that  there  can  be  no 
proceeding  by  garnishment  of  his  debtors,  unless  the  law  ex- 
pressly authorize  it ;  the  proceeding  must  stop  with  the  debtor  of 
the  defendant.* 

§  454  a.  Garnishment  can  have  no  retroactive  effect,  so  as  to 
affect  prior  transactions  between  the  garnishee  and  the  defend- 
ant, or  to  subject  the  former  to  liability  on  account  of  property 
of  the  latter  which  was  in  his  hands  previous  to,  but  not  at  the 
time  of,  the  garnishment.  Thus,  where  the  garnishee,  prior 
to  the  garnishment,  had  had  property  of  the  defendant  in  his 
possession  under  a  secret  trust,  which  would  have  been  void 
as  against  creditors;  but  before  he  was  garnished  he  had  de- 
livered the  property  to  the  defendant ;  it  was  held,  that  he  could 
not  be  charged.^ 

§  454  b.  Garnishment  can  have  no  effect  to  overthrow  trusts, 
in  order  to  reach  moneys  supposed  to  belong  to  a  debtor.  What- 
ever mone}^  or  property  of  the  debtor  is  sought  to  be  reached  by 
this  proceeding,  must  be  his  absolutely/,  disencumbered  of  any 
trust  declared  in  his  favor,  or  that  of  any  other  person.     Thus, 

1  Arthur  v.  Botte,  42  Texas,  159.  *  Illinois   C.   R.  R.  Co.  v.  Weaver,  54 

2  Bigelow  V.  Andress,  31  Illinois,  322.     Illinois,  319. 

In  New  Hampshire,  in  an  attachment  pro-  ^  Bailey  v.  Ross,  20  New  Hamp.  302. 

ceeJing  in   equity,  a   bill   to  restrain  a  See  Emerson   v.  Wallace,  Ibid.  567.     In 

garnishee  from  fraudulently  putting  his  Whittier  y.  Prescott,  48  Maine,  367,  it  was 

property  beyond  the  reach  of  legal  pro-  held,  that  one  who  had  received  a  gratui- 

cess  in  order  to  prevent  the  collection  of  tons  gift  of  money,  will  not  be  chargeable 

the  judgment  which  he  anticipates  may  therefor  as   garnishee   of  the   donor,  al- 

be  rendered  against  him  as  garnishee,  was  though  the  debt  sued  for  existeil  prior  to 

sustained.     Moore   v.   Kidder,    55    New  the  gift,  if  the  case  does  not  disclose  that 

Hamp.  488.  the  donor  was  insolvent   or   largely  in- 

^  Jones   V.  Huntington,    9    Missouri,  debted. 
249. 

[370] 


CHAP.  XVIII.]      GAENISHMENT.  —  GENERAL   VIEWS.  §  455 

where  a  testator  bequeathed  to  his  son  a  sum  of  money  "/or  the 
sujyport  of  himself  and  family  and  for  no  other  purpose  ;  "  and  a 
part  of  that  sum  had  been  recovered,  and  paid  to  the  attorney  of 
the  son,  in  whose  hands  it  was  attached  ;  the  court  held,  that  the 
money  was  a  trust  fund  under  the  will,  in  which  the  son  had  no 
such  absolute  right  as  to  authorize  its  being  attached  for  his 
debts,  either  before  or  after  it  came  into  his  hands.  "  The  will," 
said  the  court,  "  should  be  carried  out  according  to  the  intent  of 
the  testator.  And  we  can  have  no  possible  doubt  that  it  was  his 
object  to  create  the  money  in  the  hands  of  his  son  a  trust  fund 
for  the  use  specified  in  the  will.  The  testator  not  only  used  affirm- 
ative words,  appropriate  to  create  a  trust  fund,  but  he  saw  fit 
at  the  same  time  to  add  a  negative.  The  words  are,  —  'for  the 
support  of  himself  and  family,  and  for  no  other  purpose.''  To  hold 
that  under  this  will  the  son  took  the  money  absolutely  as  his 
own,  and  not  as  a  trust  fund,  would  be  to  pervert  the  use  of  lan- 
guage, and  the  obvious  intent  of  the  testator."  ^  So,  where  prop- 
erty was  devised  to  a  trustee,  "  to  hold  upon  trust,  to  collect  and 
receive  the  rents  and  income  .  .  .  and  to  pay  the  said  rents  and 
mcome  ...  to  and  for  the  support  and  maintenance  of  my  son 
C,  during  the  term  of  his  natural  life,  with  the  intent  and  pur- 
pose, that  the  said  trustee  may  either  pay  the  said  income,  or 
such  portion  thereof  as  he  may  think  proper,  into  the  hands  of  my 
said  son,  or  disburse  the  same  in  such  way  as  to  the  trustee  may 
seem  best  for  his  comfortable  maintenance  ;  such  payments  and 
disbursements  to  be  at  all  times  at  the  sole  and  absolute  discretion 
of  the  said  trustee ;  "  and  the  trustee  was  summoned  as  garnishee 
of  C. ;  the  court  held,  that  to  charge  him  would  utterly  defeat  the 
intent  of  the  testator  in  creating  the  trust,  and  he  was  therefore, 
and  for  other  reasons,  discharged.^ 

§  455.  In  garnishment,  as  in  the  case  of  a  lev}^  attachments 
take  precedence  in  the  order  of  their  service.  The  right  of  several 
attaching  creditors,  as  between  themselves,  by  virtue  of  their  suc- 
cessive processes,  to  reach  the  effects  of  their  common  debtor  in 
the  hands  of  a  garnishee,  is  a  matter  of  strict  law,  and  unless  the 
creditor  in  the  prior  process  perfects  his  right  as  against  the  gar- 

1  White  V.  White,  30  Vermont,  338.  hams,   120  Ibid.  344 ;  Hinckley  v.   Wil- 

'^  Keyser  r.  Mitcliell,  G7  I'enn.  State,  hams,    1    Cusliing,   4U0;    Mcllvaine     v. 

473.     See  Wliite  y.  Jenltiiis,  16  Mass.  62;  Lancaster,  42  Missouri,  90;  Lackland  v. 

Brigden  v.  Gill,  Ibid.   522 ;  Hall  v.  Wil-  Garesche,  56  Ibid.  267. 

[371] 


§  456  GARNISHMENT.  —  GENERAL   VIEWS.      [CHAP.  XVni. 

nishee,  l\v  obtaining  final  judgment  that  may  be  enforced  in  the 
manner  provided  by  law,  his  process  will  fail  to  postpone  or  de- 
feat the  subsequent  attachers  in  reacliing  such  effects.  Thus, 
where  a  garnishee,  under  an  arrangement  with  the  first  of  several 
attaching  creditors  and  the  defendant,  paid  his  debt  to  such  cred- 
itor, and  the  latter  did  not  prosecute  his  suit  to  judgment  against 
the  garnishee  and  the  defendant,  the  garnishee  was  held  still 
liable  to  a  subsequent  attaching  creditor,  who  completed  his  judg- 
ment, and  whose  process  was  served  prior  to  such  arrangement.^ 
And  so,  if  a  junior  attachment  be  first  ripened  into  a  judgment, 
that  gives  no  right  to  priority  of  recourse  against  the  garnishee, 
over  a  writ  previously  served.^  And  where  one  has  been  subjected 
to  garnishment  in  different  jurisdictions,  and  makes  known  to 
the  court  in  which  he  was  last  served  the  fact  of  the  previous 
garnishment,  that  court  will  take  such  measures  as  it  may  deem 
expedient,  to  protect  him  from  double  liability,  and  at  the  same 
time  to  continue  his  responsibility  to  its  authority,  in  the  event 
of  his  release  from  that  of  the  court  in  which  he  was  previously 
garnished.  In  such  a  case  the  Supreme  Court  of  Louisiana 
considered,  that  there  should  be  a  stay  of  proceedings  for  a 
seasonable  time,  or  that  the  plaintiff  should  give  proper  security 
to  the  garnishee,  to  indemnify  him  against  loss  from  the  previous 
attachment.^ 

§  456.  After  the  foregoing  general  remarks,  the  first  inquiry 
naturally  presenting  itself  is  for  general  principles  regulating  the 
liability  of  garnishees.  This  liability  may  result,  as  we  shall 
hereafter  fully  see,  either  from  the  possession  by  the  garnishee, 
when  summoned,  of  personal  property  belonging  to  the  defend- 
ant, or  from  his  being,  at  that  time,  indebted  to  the  defendant. 
It  will,  therefore,  at  once  be  apparent,  that  many  questions  must 
arise,  as  to  the  nature  and  condition  of  the  property  in  the  gar- 
nishee's hands,  and  the  nature,  extent,  and  qualifying  circum- 
stances of  his  liability  as  a  debtor  of  the  defendant,  necessarily 
involving  the  determination  of  many  legal  principles.  These 
questions  will  be  considered  in  their  appropriate  order :  at  pres- 
ent it  is  important  to  lay  the  groundwork  of  general  principles. 

1  Wilder  v.  Weatherhead,  32  Vermont,  Griffith,  2  Cranch  C.  C.  199;  Arledge  u. 
765  ;  Ante,  §  262.  White,  1  Head,  241. 

2  Erskine  v.  Staley,  12  Leigh,  406;  ^  Woodruff  r.  French,  6 Louisiana  An- 
Moore  v.  Holt,  10  Grattan,  284  ;  Talbot  nual,  62. 

V.  Hardin<;,  10  Missouri,  350 ;  Johnson  v. 
[372] 


CHAP.  XVin.]      GARNISHMENT.  —  GENERAL   VIEWS.  §  457 

§  457.  It  is  necessary,  in  the  first  place,  to  bear  in  miind,  that, 
wherever  the  distinction  exists  between  common  law  and  chan- 
cery jurisdiction,  courts  of  law  cannot  nndertake,  by  garnish- 
ment, to  settle  equities  between  the  parties,  in  order  to  subject 
an  equitable  demand,  which  the  defendant  may  have  against  the 
garnishee,  to  the  payment  of  the  defendant's  debt.  Where  this 
distinction  does  not  exist,  and  both  branches  of  jurisdiction  are, 
as  it  were,  fused  into  one,  or  where,  as  in  some  States,  courts  of 
chancery  are  vested  with  jurisdiction  in  attachment  cases,  the 
rule  may  be  different.^  In  courts  of  law,  however,  garnishment 
must  be  considered  as  a  legal  and  not  an  equitable  proceeding, 
and  consequently  the  defendant's  rights  to  the  fund  or  property 
sought  to  be  condemned  must  be  legal,  as  contradistinguished 
from  equitable.  If  this  rule  be  departed  from,  there  will  be  no 
stopping  point,  and  we  must  go  the  full  length,  and  claim  that 
the  equitable  rights  of  the  defendant  may  be  attached  by  gar- 
nishment in  a  suit  at  law,  and  thus  a  court  of  law  will  become 
invested  with  cognizance  of  equitable  rights,  and  therefore  bound 
to  ascertain  and  condemn  them,  however  difficult  the  task  may 
be,  or  however  incompetent  the  powers  of  the  court  for  this  pur- 
pose.2     Thus,  where  a  garnishee  was  sought  to  be  charged  on  the 

1  In  Hassie  v.  G.  I.  W.  U.  Congrega-  cise  jurisdiction  in  equity,  it  will  hardly 

tion,  35  California,  378,  the  court  made  be  contended,  we  think,  that  our  attach- 

the  following  judicious  remarks  upon  the  ment  laws  should  be  read  as  conferring 

suggestion   contained  in   this   sentence:  it,   unless  —  which   they   do    not  — they 

"  In  view  of  the  fact  that,  under  our  sys-  contain  expressions  admitting  of  no  other 

tem  of  practice,  law  and  equity  jurisdic-  construction.     If  we  admit  that  the  equi- 

tions  are  blended,  it  is  claimed  that  the  table   rights    of   the    defendant   can    be 

mere  equitable  rights  of  the  defendant  reached  in  that  way,  we  must  go  to  the 

may  be  reached  by  this  process,  and  a  length    of    holding    that    our    Justices' 

suggestion  that  such  may  be  the  case,  Courts  can  take  cognizance  of  them,  and 

thrown  out  by  Drake  in  his  work  on  At-  must,  if  called  upon,  ascertain  and  con- 

tachment  (§  457),  is  cited  in  support  of  demn  them  to  the  use  of  the  plaintiff, 

the   doctrine.      Whatever   weight   there  however  difficult  the  undertaking   may 

might  be  in  the  suggestion,  if  our  attach-  be,  or  however  inadequate  the  powers  of 

ment  laws  were  administered  only  by  our  those    courts,  or   however    incompetent 

District  Courts,  there  certainly  can  be  no  their  presiding  officers.     To  such  a  length 

weight  attached  to  it,  in  view  of  the  fact  we  are  not  prepared  to  go,  until  required 

that  our  attachment  laws  are  made  appli-  to  do  so  in  language  which  will  admit  of 

cable  to  Justices'  Courts.     If  our  District  no  other  interpretation." 
Courts  can  pursue  the  equitable  rights  or  ^  Harrell   v.    Whitman,    19   Alabama, 

claims  of  tlie  defendant,  and  subject  them  135;    Thomas   v.   Hopper,   5  Ibid.   442; 

to  the  satisfaction  of  the  plaintiff's  judg-  Hoyt  v.  Swift,  13  Vermont,  121) ;  May  v. 

ment,  by  parity  of  reason  our  Justices'  Baker,  15  Illinois,  89;  Webster  v.  Steele, 

Courts  may  do  the  same   thing.     Inde-  75  Ibid.  544  ;  Perry  v.  Thornton,  7  Rhode 

pendent  of  tiie  question  whether  Justices'  Island,  15  ;  Clarke  v.  Farnum,  Ibid.  174  ; 

Courts  under  our  Constitution  can  exer-  Williams  v.    Gage,  4'J  Mississippi,  777  ; 

[373] 


^  4o9 


GARNISHMENT.  —  GENERAL  VIEWS.      [CHAP.  XVIIT. 


ground  that  he  was  indebted  to  the  defendant  in  respect  of  a 
partnership  which  had  existed  between  them,  but  the  accounts 
of  Avhich  had  not  been  settled,  it  was  lield,  that  the  proceeding 
coukl  not  be  sustained  ;  that  tlie  partnership  accounts  could  not 
be  settled  in  that  way,  but  only  in  equity. ^ 

§  458.  A  fundamental  doctrine  of  garnishment  is,  that  the 
plaintiff  does  not  acquire  any  greater  rights  against  the  garnishee 
than  the  defendant  himself  possesses.  When,  therefore,  the  at- 
tachment plaintiff  seeks  to  avail  himself  of  the  rights  of  the 
defendant  against  the  garnishee,  his  recourse  against  the  latter 
must  of  necessity  be  limited  by  the  extent  of  the  garnishee's 
liability  to  the  defendant.^  This  principle  is  subject,  however,  to 
an  exception,  where  the  garnishee  is  in  possession  of  effects  of 
the  defendant  under  a  fraudulent  transfer  from  the  latter.  There, 
though  the  defendant  would  have  no  claim  against  the  garnishee, 
yet  a  creditor  of  the  defendant  can  subject  the  effects  in  the  gar- 
nishee's hands  to  his  attachment.^ 

§  459.  The  plaintiff's  right  to  hold  a  garnishee,  exists  only  so 
long  as,  in  the  suit  in  which  the  garnishment  takes  place,  he  has 
a  right  to  enforce  his  claim  against  the  defendant.  When  his 
remedy  against  the  latter  is  at  an  end,  so  is  his  recourse  against 
the  garnishee.  That  the  latter  may  show  that  the  plaintiff's  right 
against  him  has  been  thus  terminated,  cannot  be  doubted.  Thus,' 
where  one  was  garnished  under  an  execution,  he  was  per- 
mitted to  show  by  a  previous  execution  in  the  same  case,  that 


Mass.  Nat.  Bank  v.  Bullock,  120  Mass.  86 ; 
Sheedy  v.  Second  Nat.  Bank,  62  Missouri, 
17.  In  Godden  u.  Pierson ,  42  Alabama,  370, 
it  was  held,  that  the  i)laintifl:  will  not  be 
permitted,  in  order  to  charge  a  garnishee, 
to  affirm  the  validity  of  the  sale  of  certain 
property  by  the  defendant  to  the  garnishee, 
in  order  to  subject  him  to  tlie  payment 
of  the  purchase-  money  therefor,  and  at 
the  same  time  attack  the  sale  for  fraud. 

1  Burnham  v.  Hopkinson,  17  New 
Hamp.  259  ;  Treadwell  v.  Brown,  41  Ibid. 
12.  Nor  can  the  garnishment  of  one  part- 
ner in  an  action  against  his  copartner, 
authorize  the  attaching  plaintiff  to  main- 
tain a  bill  in  equity  against  the  latter  for 
an  account,  so  as  to  reach  tlie  debtor's 
interest  in  the  partnership.  Treadwell  v. 
Brown,  43  New  Hamp.  2'JO. 
[374] 


2  Post,  §  660 ;  Harris  v.  Phoenix  Ins. 
Co.,  35  Conn.  310 ;  Myer  v.  Liverpool, 
L.  &  G.  Ins.  Co.,  40  Maryland,  595  ;  Tup- 
per  V.  Cassell,  45  Mississippi,  352;  United 
States  V.  Robertson,  5  Peters,  641. 

a  Lamb  v.  Stone,  11  Pick.  527.  Tiiis 
was  an  action  on  the  case  by  a  creditor 
against  a  person  to  whom  it  was  alleged 
tlie  debtor  had  made  a  fraudulent  sale  of 
his  property.  The  court  held,  that  the 
action  could  not  be  maintained,  because, 
1.  If  the  sale  was  fraudulent,  tlie  prop- 
erty was  liable  to  attachment,  after,  as 
well  as  before,  the  sale  ;  and  2.  If  the 
property  could  not  be  come  at  to  be  at- 
tached specifically,  it  might  be  reached 
in  the  purchaser's  hands  by  garnishment. 
See  United  States  v.  Vaughan,  8  Binney, 
894. 


CHAP.  XVIII.]      GARNISHMENT.  —  GENERAL   VIEWS.  §  460  « 

the  defendant  had  satisfied  the  judgment.^  And  where,  by  law, 
the  death  of  a  defendant  and  a  decree  by  the  probate  court 
of  the  insolvency  of  his  estate,  had  the  effect  of  dissolving  an 
attachment  levied  on  his  property,  it  was  held,  that  the  lien  ac- 
quired by  a  garnishment  was  thereby  likewise  destroyed,  and  that 
as  the  judgment  which  might  be  obtained  against  the  defendant's 
estate  could  not  be  coerced  by  execution,  so  none  could  issue  on 
a  judgment  against  the  garnishee  ;  and  therefore  no  judgment 
could  be  rendered  against  him.^ 

§  459  a.  The  dissolution  of  the  attachment  operates  a  discharge 
of  the  garnishee,  though  the  suit  as  a  personal  action  be  allowed 
by  law  to  proceed.^ 

§  460.  As  the  whole  object  of  garnishment  is  to  reach  effects 
or  credits  in  the  garnishee's  hands,  so  as  to  subject  them  to  the 
payment  of  such  judgment  as  the  plaintiff  may  recover  against 
the  defendant,  it  results  necessarily  that  there  can  be  no  judg- 
ment against  the  garnishee,  until  judgment  against  the  defendant 
shall  have  been  recovered.*  And  the  judgment  against  the  de- 
fendant must  be  a  final  one.  If  appealed  from  by  the  defend- 
ant, there  can  be  no  judgment  against  the  garnishee  while  the 
appeal  is  pending  ;  ^  and  if  the  judgment  against  the  defendant  be 
reversed,  that  against  the  garnishee  must  fall  with  it,  and  be 
likewise  reversed.^ 

§  460  a.  In  most  States  authority  is  given  to  a  party  claiming 
to  own  the  debt  in  respect  of  which  a  garnishee  is  summoned,  to 
intervene  in  the  attachment  suit,  and  assert  his  ownership  of  the 
debt,  so  as  to  prevent  its  subjection  to  the  operation  of  the  gar- 
nishment. In  such  case,  the  right  of  such  intervention  exists 
only  so  long  as  the  attaching  plaintiff  seeks  to  charge  the  gar- 

1  Thompson  U.Wallace,  .3  Alabama,  307;  Proseus  y.  Mason,  12  Louisiana,  16; 
132  ;    Price   v.    Iliggins,    1    Littel,   274 ;  Housemans  v.  Heilbron,  23  Georgia,  186 
Hammett  v.  Morris,  55  Georgia,  644.  Rose  v.   Whaley,  14  Louisiana  Annual,; 

2  McEachin  v.  Reiil,  40  Alabama,  410.  374 ;  Collins  v.  Friend,  21   Ibid.  7  ;  Rob- 

3  Ante,  §  411;  Mitchell  v.  Watson,  erts  u.  Barry,  42  Mississippi,  260;  Met- 
9  Florida,  160.  calf  v.  Steele,  Ibid.  511 ;  Kellogg  v.  Free- 

4  Gaines  v.  Beirne,  3  Alabama,  114  ;  man,  50  Ibid.  127  ;  Erwin  v.  Heath,  Ibid. 
Leigh  V.  Smith,  5  Ibid.  583 ;  Lowry  v.  795  ;  Washburn  v.  N.  Y.  &  V.  M.  Co.,  41 
Clements,  0  Ibid.  422  ;  Bostwick  v.  Beach,  Vermont,  50. 

18  Ibid.  80;  Case  v.  Moore,  21  Ibid.  758  ;  s  Emanuel  v.  Smith,  38  Georgia,  602. 

Caldwell  v.  Townsend,   5   Martin,   n.  s.  ^  Kowlett  v.  Lane,  43  Texas,  274. 

[375] 


§  462  GARNISHMENT.  —  GENERAL    VIEWS.      [CHAP.  XVIII. 

nishee  in  respect  of  that  debt.  If  the  phiintiff  abandons  all  right 
to  charge  the  garnishee,  the  only  judgment  that  the  court  can 
render  is  that  the  latter  be  discharged  ;  it  has  no  power,  in  that 
action,  to  settle  the  right  of  the  intervening  claimant  to  the 
debt.i 

§  461.  In  order  to  a  recovery  against  a  garnishee,  it  must  be 
sTioum  affirmatively^  either  by  his  answer  or  by  evidence  aliunde^ 
that  he  has  property  of  the  defendant  in  his  possession,  of  a  de- 
scription which  will  authorize  his  being  charged,  or  that  he  is 
indebted  to  the  defendant.  The  law  will  not  presume  him  liable, 
nor  will  he  be  required  to  show  facts  entitling  him  to  be  dis- 
charged, until  at  least  a  primd  facie  case  is  made  out  against 
him.  On  the  contrary,  the  rule  is  the  other  way,  that  he  will  be 
entitled  to  be  discharged,  unless  enough  appear  to  render  him 
liable.  In  this  respect  he  stands  precisely  in  the  position  he 
would  occupy  if  the  defendant  had  sued  him.  A  dictum  of 
Parsons,  C.  J.,  in  1807,  very  proper  as  applied  to  the  case  be- 
fore him,  but  wholly  erroneous  as  a  general  principle,  —  that 
"  the  trustees  must  be  holden,  unless  sufficient  matter  appears  in 
their  answers  to  discharge  them,"^  created  and  kept  alive  in 
Massachusetts,  for  many  years,  a  misconception  of  the  true  posi- 
tion of  a  garnishee,  and  of  the  principles  upon  which  he  should 
be  held  liable.  Afterwards,  however,  the  Supreme  Court  of  that 
State,  in  an  elaborate  opinion,  traced  the  rise  and  progress  of  that 
misconception,  and  finally  settled  the  rule  that  the  garnishee's 
liability  should  be  affirmatively  shown. ^ 

§  462.  It  is  an  invariable  rule,  that  under  no  circumstances 
shall  a  garnishee,  by  the  operation  of  the  proceedings  against 
him,  be  placed  in  any  worse  condition  than  he  would  be  in,  if  the 
defendant's  claim  against  him  were  enforced  by  the  defendant 
himself.  This  is  necessary,  in  order  to  protect  the  garnishee's 
rights,  as  between  him  and  the  defendant,  and  to  enable  the  gar- 
nishee to  defend  against  a  suit  which  the  defendant  might  bring 

1  Peck  V.  Stratton,  118  Mass.  406.  Pacific  Railroad,  21  Missouri,  .30  ;  Karnes 

2  Webster  v.  Gage,  2  Mass.  503.  v.  Pritchard,  36  Ibid.  135;  Lane  v.  Felt, 

3  Porter  v.  Stevens,  9  Cusliing,  530.  7  Gray,  491 ;  DriscoU  v.  Hoyt,  11  Ibid. 
See  Lomerson  v.  Huffman,  1  Dutcber,  404;  Richards  v.  Stephenson,  99  Mass. 
625;  Williams  v.  Housel,  2  Iowa,  154;  311;  Caldwell  u.  Coates,  78  Penn.  State, 
Farwell  v.  Howard,  26  Ibid.  381 ;  Hunt  312. 

V.    Coon,    9    Indiana,    537 ;    Reagan    v. 
[376] 


CHAP.  XVni.]      GAKNISHMENT.  —  GENERAL  VIEWS.  §  463 

against  him  on  the  same  liability  for  which  he  may  have  been 
held  as  garnishee. 

§  463.  As  to  the  general  basis  of  a  garnishee's  liability,  it  will 
be  found,  on  examination,  that  whatever  else  may,  under  partic- 
ular statutes,  authorize  his  being  charged,  there  are  two  compre- 
hensive grounds,  common  to  everj'  attachment  system,  viz.  1.  His 
possession,  when  garnished,  of  personal  property  of  the  defend- 
ant, capable  of  being  seized  and  sold  on  execution ;  and,  2.  His 
liability,  ex  contractu^  to  the  defendant,  whereby  the  latter  has, 
at  the  time  of  the  garnishment,  a  cause  of  action,  present  or 
future,  against  him.  In  some  States  he  may  be  charged  in  re- 
spect of  real  estate  of  the  defendant  in  his  hands ;  and  in  some, 
on  account  of  choses  in  action;  but  aside  from  such  special  pro- 
visions, the  language  used  in  defining  his  liability,  though  varied, 
and  often  cumulative,  will,  on  examination,  be  found  to  resolve 
itself,  in  each  case,  into  those  two  general  grounds ;  which  may 
be  considered  as  fully  embraced  in  any  system  which  provides  no 
more  than  that  one  having  '•'•  goods^  effects^  or  credits'"  of  the  de- 
fendant in  his  possession  may  be  charged  as  his  garnishee.  The 
addition  of  the  word  "money,"  or  "  chattels,"  or  "property,"  or 
"  rights,"  which  is  frequently  found,  or  that  of  all  of  them,  is  not 
conceived  to  enlarge,  in  legal  construction,  the  basis  afforded  by 
the  comprehensive  terms,  "goods,  effects,  or  credits."  Hence 
the  general  applicability  of  the  decisions  in  Massachusetts  and 
Maine,  where,  under  statutes  using  those  words,  it  has  been  uni- 
formly held,  that,  to  charge  a  garnishee,  the  defendant  must 
either  have  a  cause  of  action  against  him,  or  the  garnishee  must 
have  in  his  possession  personal  property  belonging  to  the  defend- 
ant, capable  of  being  seized  and  sold  on  execution. ^  And  the  same 
rule  prevails  in  New  Hampshire  and  Vermont,  where  "  any  per- 
son having  in  his  possession  money,  goods,  chattels,  rights,  or 
credits  "  of  the  defendant,  may  be  charged  as  garnishee.^  And 
where  this  possession  exists,  the  possessor  cannot  escape  the 
operation  of  the  garnishment  on  the  ground  that  the  property 

1  Maine  F.  &  M.  Ins.  Co.  v.  "Weeks,  7  v.  Piper,  Ibid.  439;  Greenleaf  v.  Perrin, 
Mass.  488;  White  v.  Jenkins,  16  Ibid.  62  ;  8  Ibid.  273;  Paul  ;;.  Paul,  10  Ibid.  117  ; 
Brigden  v.  Gill,  Ibid.  522;  Rundlet  v.  Getcliell  i'.  Cliase,  ?>7  Ibid.  106  ;  Ilutchins 
Jordan,  3  Maine,  47.  v.    Hawley,  9    Vermont,   295;    Iloyt    v. 

2  Haven  v.  Wentwortb,  2  New  Hamp.  Swift,  13  Ibid.  129. 
93;  Adams  v.  Barrett,  Ibid.  374;  Piper 

[377] 


5  464 


GARNISHMENT.  —  GENERAL  VIEWS.      [CHAP.  XVIII. 


for  Avlneli  it  is  sought  to  charge  him  might  have  been  attached 
by  levy.i 

§  464.  The  rule,  as  just  stated,  is  qualified,  in  the  case  before 
referred  to,  of  the  garnishee's  possession  of  effects  of  the  defend- 
ant under  a  fraudulent  transfer,'^  and  is  also  subject  to  excep- 
tions. For  instance,  where  the  garnishee  has  in  his  possession 
property,  which,  when  he  is  summoned,  could  not  be  seized  un- 
der attachment  or  execution,  because  not  removable  Avithout 
material  injury  to  it,  —  as  hides  in  the  process  of  tainiing,  —  he 
may  nevertheless  be  charged  as  garnishee  in  respect  of  such 
property,  because  he  can  hold  it  until  it  be  in  a  condition  to  be 
delivered  on  execution. ^  So,  an  attorney  at  law,  who  has  col- 
lected money  for  his  client,  may  be  held  as  garnishee  of  the  client, 
though  the  latter  have  made  no  demand  of  payment ;  without 
which  he  could  maintain  no  action  against  the  attorney.*  So,  a 
person  indebted  to  two  jointly,  either  on  implied  assumpsit,^  or 
by  note,^  may  be  charged  as  garnishee  of  one  of  his  creditors, 
though  that  one  could  not  maintain  an  action  against  him  without 
joining  his  co-creditor.  So  where  the  garnishee  is,  when  sum- 
moned, a  debtor  of  the  defendant,  but  the  debt  is  payable  at  a 
future  time  ;  though  the  defendant,  at  the  time  of  the  garnish- 
ment, can  maintain  no  action  against  the  garnishee,  yet  the  latter 


1  Brown  v.  Davis,  18  Vermont,  211. 

2  Ante,  §  458. 

3  Clark  V.  Brown,  14  Mass.  271. 

*  Staples  V.  Staples,  4  Maine,  5.32; 
Wooflbriflge  v.  Morse,  5  New  Hamp.  519; 
Thayer  v.  Sherman,  12  Mass.  441 ;  Riley 
V.  Hirst,  2  Penn.  State,  346;  Mann  v. 
Buford,  3  Alabama,  312.  In  Corey  i'. 
Powers,  18  Vermont,  588,  Williams, 
C.  J.,  said  :  "  It  is  objected  that  no  action 
could  have  been  maintained  by  the  debtor 
against  the  trustee,  without  a  previous 
demand,  and  that  because  no  such  de- 
mand was  found  in  the  case,  tlie  trustee 
should  not  have  been  held  chargeable. 
It  is  not  necessary,  to  constitute  this 
relation  of  debtor  and  trustee,  that  a 
right  of  action  should  actually  exist  and 
be  perfected  in  the  debtor,  at  the  com- 
mencement of  the  trustee  process.  It  is 
sufficient,  if  property  is  deposited  with 
the  trustee,  or  that  he  is  indebted  to  the 
principal  debtor,  though  something  fur- 
[378] 


thcr  may  be  requisite,  to  constitute  a 
right  of  action  therefor."  In  Quigg  v. 
Kittredge,  18  New  Hamp.  137,  the  court 
said  :  "  Actions  cannot  be  maintained  by 
the  party  entitled,  against  attorneys, 
sheriffs,  agents,  &c.,  who  have  moneys 
in  their  hands,  collected,  until  a  demand 
has  been  made.  So,  bailees  are  not  an- 
swerable, in  many  cases,  until  there  has 
been  a  demand.  So,  administrators  of 
insolvent  estates  cannot  be  charged  until 
demand,  after  a  dividend  has  been  de- 
clared, nor  administrators  generally,  for 
the  share  of  an  heir.  But  they  may  be 
charged  as  trustees,  although  there  has 
been  no  demand.  The  reason  is,  that 
the  process  of  foreign  attachment  is  not 
regarded  as  an  adverse  suit,  as  against 
the  trustee.  Instead  of  being  subjected 
to  costs,  he  recovers  costs,  and  these  are 
regarded  as  an  indemnity." 

s  Wiiitney  v.  Munroe,  19  Maine,  42. 

6  Miller  11.  Richardson,  1  Missouri,  310. 


CHAP.  XVIII.]      GARNISHMENT.  —  GENERAL   VIEWS. 


465 


may  be  charged.  Thus,  where  a  savings  bank  was  garnished, 
and  at  the  time  had  money  of  the  defendant  on  deposit,  which, 
by  the  terms  of  its  charter,  conld  be  withdrawn  by  him  only  at 
certain  designated  times,  and  after  a  week's  notice,  and  upon  the 
production  of  his  pass-book,  or  satisfactory  evidence  of  its  loss ; 
none  of  which  requirements  had  been  met  by  the  defendant  be- 
fore the  garnishment  took  place,  and  therefore  he  then  had  no 
cause  of  action  against  the  bank  ;  it  was  held,  that  the  bank  was, 
nevertheless,  chargeable  as  garnishee.^ 

§  465.  Still  the  rule  as  stated  may  be  considered  generally 
applicable  ;  and  it  follows  thence,  that,  without  express  statutory 
warrant,  one  cannot  be  made  liable  as  garnishee  in  respect  of  real 
estate  of  the  defendant  in  his  possession,  and  it  has  been  so  held 
in  several  instances.  In  Maine,^  Massachusetts,^  and  Connect- 
icut,* where  the  possession  of  "goods,  effects,  or  credits  "  of  the 
defendant,  by  the  garnishee,  is  the  criterion  of  the  garnishee's 
liability,  real  estate  is  not  considered  to  come  within  the  meaning 
of  those  terms.  In  New  Hampshire  ^  and  Vermont,^  under  stat- 
utes basing  the  liability  of  the  garnishee  on  his  possession  of 
"  money,  goods,  chattels,  rights,  or  credits,"  the  same  doctrine  is 
held.  Therefore,  where  A.,  when  about  to  abscond,  fraudulently 
executed  a  note  to  B.,  and  a  mortgage  to  secure  the  payment  of 
the  note,  and  B.  was  subsequently  garnished,  the  court  said : 
"  The  lands  mortgaged  are  not  effects  within  the  statute,  because 
the  mortgage  being  fraudulent  as  to  creditors,  the  lands  mort- 
gaged may  be  taken  in  execution,  either  by  the  plaintiff  or  by 
any  other  creditor.  And  it  has  long  been  settled  that  where 
lands  are  fraudulently  conveyed  by  a  debtor,  the  grantee  is  not 
thereby  a  trustee  for  creditors,  because,  as  to  them,  the  convey- 
ance is  void,  and  the  lands  are  liable  to  their  executions,  without 
the  assent  or  exposure  of  the  grantee.  If  he  was  holden  a 
trustee  to  the  value  of  the  lands,  after  having  paid  one  creditor 
that  value,  another  creditor  might  by  his  execution  take  the 

1  Nichols  V.  Scofield,  2  Rhode  Island,  erance,   6   Ibid.   474 ;  Gore   v.    Clisby,  8 

123.      See   Clapp   v.   Hancock    Bank,    1  Ibid.  555  ;  Bissell  w.  Strong,  9  Ibid.  562. 

Allen,  304.  See  Seymour  v.  Kramer,  5  Iowa,  285. 

■^  Moor  V.  Towle,  38  Maine,  133 ;  Sted-  *  Kisley  v.  Welles,  5  Conn.  431. 

man  v.  Vickery,  42  Ibid.  132;  Plummer  ^^  Wright  v.  Bosworth,  7  New  Hamp. 

V.  Ilundlett,  Ibid.  305.  590. 

8  How  V.  Field,  5  Mass.  390;  Dickin-  «  Baxter  v.  Currier,  13  Vermont,  615. 


son  V.  Strong,  4  Pick.  57  ;  Ripley  v.  Sev- 


[379] 


§  465  GARNISHMENT.  —  GENERAL  VIEWS.      [CHAP.  XVIII. 

lands  from  liim,  and  thus  lie  would  in  effect  be  charged  with  the 
value  without  any  consideration."  ^  •  So,  where  an  insolvent 
debtor  had  assigned  personal  and  real  propei't}'^  for  the  payment 
of  certain  debts,  and  the  assignee  was  garnished,  he  was  held 
not  liable  in  respect  of  the  real  estate  ;  the  court  basing  its  judg- 
ment on  the  following  grounds :  "There  are  great  difficulties  in 
charging  the  assignee,  by  the  trustee  process,  on  account  of  the 
real  estate  so  conveyed.  Indeed,  the  provisions  of  the  statute 
cannot  be  executed  upon  it,  according  to  the  intention  of  the 
legislature,  nor  can  real  property  thus  situated  be  brought  within 
an}'-  technical  definition  of  the  words  of  the  statute  which  desig- 
nate the  objects  of  the  process.  Land  is  neither  goods,  effects, 
nor  credits ;  neither  is  the  assignee  indebted  to  the  assignor  on 
account  of  it.  If  this  difficulty  could  be  overcome  by  giving  a 
broader  signification  to  the  term  effects  than  is  usually  assigned 
to  it,  there  are  other  difficulties  which  are  quite  insuperable. 
The  sixth  section  of  the  statute  provides  that  the  trustee,  when 
judgment  is  rendered  against  the  principal,  and  against  his  goods 
and  effects  in  the  hands  of  the  trustee,  may  discharge  himself  by 
exposing  the  goods  and  effects  of  the  principal  to  the  ofiicer  who 
has  the  execution ;  and  the  officer  may  then  seize  and  sell  them 
as  the  property  of  the  principal.  This  is  wholly  inapplicable  to 
land  ;  which  cannot  be  considered  as  the  principal's  while  the 
legal  title  is  in  the  assignee.  And  then  the  form  of  the  execution 
provided  in  the  statute  manifestly  shows  that  real  estate  was  not 
in  the  contemplation  of  the  legislature,  as  a  subject  of  the  pro- 
cess. It  requires  the  sheriff,  for  want  of  goods,  chattels,  or  lajids 
of  the  principal  in  his  own  hands  and  possession,  or  of  goods, 
effects,  and  credits  in  the  hands  of  the  trustees,  to  be  by  them 

1  How    V.    Field,    5    Mass.    390.    In  credits,  although  the  principal  defendant 

Hunter  v.  Case,  20  Vermont,  195,  it  was  could    not   maintain   an   action    therefor 

attempted  to  sul)ject  a  garnishee  to  lia-  against  him.     Bennett,  J.,  in  deUvering 

bility  on  account  of  real  estate  held  by  the   opinion  of  the  court,  said :  "  There 

him  under  a  conveyance  which  was  void  can  be  no  pretence  that  real  estate  can 

as  to  creditors.     The  statutory  provision  be   brought   within    the    statute,    unless 

bearing  on  the  case  was,  that,  if  the  per-  indeed,  within  the  term  effects.    Certainly 

son  summoned  as  trustee  should  have  in  it  is  not  goods  or  credits.     It  is  not  within 

his  possession  any  goods,  effects,  or  credits  the  popular  meaning  of  the  term  effects. 

of  the    principal    defendant,   which    he  That  word,  as  ordinarily  used,  is  under- 

holds  by  a  conveyance,  or  title,  that  is  stood   to   mean  goods,   movables,  personal 

void  as  to  the  creditors  of  the  principal  estate ;  and  I  am  not  aware  that  the  word 

defendant,  he  may  be  adjudged  trustee  effects  has  ever  been  defined  by  any  legal 

on  account  of   such    goods,   effects,   or  writer  as  including  real  estate." 
[380] 


CHAP.  XVITL]      garnishment. —  GENERAL   VIEWS.  §  465  « 

discovered  and  exposed,  to  take  the  body  of  the  principal,  &c. 
Now  land  conveyed  to  the  assignee  by  a  bond  fide  deed  cannot 
be  considered  as  in  the  hands  or  possession  of  the  principal,  nor 
can  it  be  considered  as  goods,  effects,  or  credits  in  the  hands  of 
the  trustee."  i  The  reasons  here  given,  though  referring  princi- 
pally to  the  statute  of  Massachusetts,  yet  have  a  general  appli- 
cability;  as  in  most  if  not  all  the  States,  a  garnishee  may 
discharge  himself  from  liability  in  respect  of  property  of  the 
defendant  in  his  hands,  by  delivering  it  to  the  officer.  Wherever 
this  is  the  case,  it  would  seem  to  follow  that  a  garnishee  should 
not  be  charged  in  respect  of  property  which  he  cannot  so  deliver, 
and,  therefore,  not  in  respect  of  real  estate.  But,  aside  from 
statutory  provisions,  it  is  sufficient  that,  if  the  conveyance  to  the 
garnishee  be  hond  fide,  he  has  no  property  of  the  defendant  in 
his  possession,  and  if  it  be  fraudulent,  the  property  is  subject  to 
the  execution  against  the  defendant,  without  any  disclosure  by 
the  garnishee  ;  and  that  the  garnishee  if  made  hable  by  one 
creditor  for  the  valup  of  the  land,  may  afterwards  lose  the  land 
by  a  sale  under  another  creditor's  execution. 

But  though  a  garnishee  may  not  be  charged  in  respect  of  real 
estate  of  the  defendant  in  his  possession,  we  shall  hereafter  see 
that  he  may  be,  on  account  of  liabilities  growing  out  of  the  pos- 
session of  such  property.^ 

§  465  a.  The  whole  scope  of  the  doctrines  stated  in  the  pre- 
ceding sections  of  this  chapter  would  seem  to  indicate  clearly  that 
garnishment  is  a  proceeding  against  third  persoyis  ;  that  is,  persons 
who  do  not  stand  in  such  relation  to  the  defendant,  as  that  their 
garnishment  is,  in  fact,  but  the  garnishment  of  the  defendant 
himself.  And  this,  doubtless,  is  the  object  of  the  proceeding 
under  the  custom  of  London;  where,  "if  the  plaintiff  will  sur- 
mise that  another  person  within  the  city  is  a  debtor  to  the  de- 
fendant in  any  sum,  he  shall  have  garnishment  against  him."  ^ 
But  attempts  have  been  made  to  garnish  individuals,  where  to  do 
so  was  in  reality  to  garnish  the  defendant;  as,  for  instance,  a 
toll-gate  keeper  of  a  turnpike  road,  and  a  ticket  agent  of  a  rail- 
road;  and  the  question  has  arisen,  whether  in  such  cases  the 
proceeding  can  be  maintained.     Upon  principle,  it  seems  that  it 

1  Gore  V.  Clisby,  8  Pick.  655 ;  Chap-  2  Post,  §  648. 

man  v.  Williams,  13  Gray,  •416.  ^  Ante,  §  1. 

[381] 


§  465  h  GARNISHMENT.  —  GENERAL   VIEWS.       [CHAP.  XVIII. 

cannot.  They  are  not  third  persons,  so  far  as  their  relations  to 
the  defendant  are  concerned ;  but  are,  in  effect,  the  defendant 
himself.  Their  possession  of  the  defendant's  money  is  his  pos- 
session. He  can  have  no  right  of  action  against  them  until  a 
demand  made  upon  them  for  the  money,  and  their  failure  to  pay 
it.  They  occupy  the  same  position  toward  him  as  a  cashier  does 
toward  a  bank,  a  cash  clerk  toward  a  merchant,  a  treasurer 
toward  a  municipal  corporation  ;  simply  custodians  of  the  de- 
fendant's mone}^  under  his  immediate  supervision  and  control. 
Still,  iu  the  case  of  a  toll-gate  keeper,  it  was  held  in  Alabama, 
that  he  could  be  charged  as  garnishee  of  the  company  for  which 
he  collected  tolls. ^  The  same  question  came  up  in  Pennsylvania, 
in  the  case  of  a  ticket  agent  of  a  railroad  company,  employed  at 
the  company's  office  to  sell  tickets  to  passengers  ;  and  the  court 
held,  that  he  could  not  be  garnished.  "  The  purpose  of  an  at- 
tachment," said  the  court,  "  is  to  reach  effects  of  a  defendant  in 
the  hands  of  third  persons.  Here,  the  defendant  is  a  corporation, 
—  a  railroad  company.  Are  its  ticket  agents  to  be  treated  as 
third  persons,  so  far  as  regards  money  received  by  them  on  the 
sale  of  tickets  to  passengers  ?  We  think  not.  We  suppose  that 
the  case  speaks  of  the  ordinary  ticket  agents  employed  at  the  of- 
fices of  the  company  ;  and  of  these  we  speak.  These  are  the  very 
hands  of  the  company ;  it  cannot  do  its  business  without  them  ; 
and  if  an  attachment  is  to  be  regarded  as  arresting  money  re- 
ceived after  its  service,  then  it  would  always  occasion  the 
dismissal  of  such  agents,  in  order  to  prevent  such  a  result."  ^  In 
like  cases,  like  views  were  held  in  Maine.'^  Much  less  can 
one  of  several  defendants  be  summoned  as  garnishee  of  the 
others.* 

§  465  h.  To  the  doctrine  stated  in  the  next  preceding  section 
an  exception  was  established  in  Alabama,  where,  under  a  judg- 

1  Central    Plank-Road    Co.    v.    Sam-  ^  Pettingill  v.  Androscoggin  R.  R.  Co., 

mons,  27  Alabama,  380.     Subsequently,  51  Maine,  370;  Sprague  v.  Steam  Nav. 

in  that  State,  it  was  held,  that  a  county  Co,   52   Ibid.   592;   Rowker   v.    Hill,  60 

treasurer  could  not  be  charged   as  gar-  Ibid  172.    Sed  contra,  Ballston  Spa  Bank 

nisliee  of  the  county;  but  this  decision  v.    Marine    Bank,    18    Wisconsin,    4y0 ; 

rested  mainly  on  peculiar  statutory  pro-  Everdell  v.  Sheboygan,  &c.  R.  K.  Co.,  41 

visions,   not    generally   found    in    other  Ibid.  395 ;  ilrst  Nat.  Bank  v.  Davenport 

States.     Edmonson   v.   DeKalb   County,  &  St.  P.  R.  R.  Co.,  45  Iowa,  120. 
51  Alabama,  103.  *  Bailey  v.  Lacey,  27  Louisiana  An- 

'-^  Fowler  v.  Pittsburg,  F.  W.  &  C.  R.  nual,  39 ;  Richardson  v.  Lacey,  Ibid.  62. 
R.  Co.,  35  Penn.  State,  22. 
[382] 


CHAP.  XYIII.]      GARNISHMENT.  —  GENERAL   VIEWS. 


467 


raent  against  A.  individually,  A.  was  garnished  as  executor  of  an 
estate,  on  the  supposition  that  he  had  in  his  hands  moneys  due 
from  himself  as  executor  to  himself  individually ;  the  statute  of 
that  State  authorizing  the  garnishment  of  executors  or  adminis- 
trators for  a  debt  due  by  the  testator  or  intestate  to  the  de- 
fendant. It  was  held,  that  A.  in  his  representative  capacity 
might  be  charged  as  his  own  garnishee,  but  that  the  judg- 
ment should  be  satisfied  out  of  the  assets  of  the  estate  in  his 
hands. ^ 

§  466.  The  further  consideration  of  this  subject  will  naturally 
lead  to  its  arrangement  in  two  general  divisions:  1.  The 
liability  of  a  garnishee  in  respect  of  property  of  the  defendant 
in  his  possession ;  and,  2.  His  liabiUty  as  a  debtor  of  the  de- 
fendant. 

§  467.  On  the  first  point  it  may  be  remarked,  that  it  will  often 
happen  that  a  person  garnished  may  have  personal  property  of 
the  defendant  in  his  possession,  and  yet  not  be  liable  as  gar- 
nishee. Various  considerations  determine  the  question  of  liability, 
not  only  as  to  the  nature  of  the  property,  but  as  to  the  circum- 
stances under  which  it  is  held.  The  property  may  not  be  such 
as  is  contemplated  by  the  rule  above  declared,  or  by  the  par- 
ticular statute  under  which  the  individual  is  garnished ;  or  his 
possession  of  it  may  not  be  such  as  to  make  him  liable  ;  or  the 
capacity  in  which  he  holds  it  may  exempt  him  from  liability  ;  or 
there  may  be  contracts  in  reference  to  it'  which  forbid  his  being 
charged.  Many  such  questions  have  arisen,  eliciting  acute 
discussion  and  learned  adjudication.  We  propose,  therefore, 
after  first  considering  who  may  be  subjected  to  garnishment, 
to  treat  of  the  liability  of  a  garnishee,  in  respect  of  personal 
property  of  the  defendant  in  his  hands,  under  the  following 
heads : 

I.  What  personal  property  of  the  defendant  in  the  garnishee's 
possession  will  make  the  garnishee  liable. 

II.  The  character  of  the  possession  of  personal  property  by  a 
garnishee,  which  will  be  sufficient  to  charge  him. 

1  Dudley  v.  Falkner,  4'J  Alabama,  148. 

[383] 


§  467  GARNISHMENT.  —  GENERAL   VIEWS.       [CHAP,  XVIII. 

III.  The  garnishee's  liability,  as  affected  by  the  capacity  in 
which  he  holds  the  defendant's  property. 

IV.  The  garnishee's  liability,  as  affected  by  previous  contracts 
touching  the  defendant's  propertj^  in  his  hands. 

V.  The  garnishee's  liability,  as  affected  by  a  previous  assign- 
ment of  the  defendant's  property  in  his  hands,  or  by  its  being 
subject  to  a  lien,  mortgage,  or  pledge. 

[384] 


CHAP.  XIX.]  WHO   MAY  BE   GARNISHED.  §  469 


CHAPTER     XIX. 

WHO  MAY  BE  GARNISHED.  —  CORPORATIONS.  —  NON-RESIDENTS. 

§  468.  As  a  general  proposition,  irrespective  of  the  ulterior 
question  of  liability,  all  persons  are  subject  to  garnishment.  But 
there  have  arisen  questions  of  importance  connected  with  the 
character  and  status  of  the  garnishee,  which  it  is  proper  to  con- 
sider, before  proceeding  to  the  more  extended  field  of  inquiry  in 
regard  to  his  liability.  Those  questions  are  connected :  1.  With 
the  garnishment  of  corporations  ;  and,  2.  With  that  of  persons 
residing  out  of  the  State  in  which  the  attacliment  is  obtained. 
The  consideration  of  these  points  will  form  the  subject  of  the 
present  chapter. 

§  469.  As  to  corporations,  provision  is  usually  made  by  statute 
for  their  garnishment.  So  far  as  such  provisions  are  concerned, 
they  need  not  be  here  discussed.  But  where  such  do  not  exist, 
can  a  corporation  be  summoned  as  garnishee,  under  general 
enactments,  prima  facie  applicable  to  natural  persons  only  ? 
This  subject  was  fairly  presented  before  the  Supreme  Court  of 
Connecticut,^  and  that  of  lowa,^  the  Court  of  Appeals  of  Mary- 
land ,3  and  that  of  Virginia,^   by   all  of  which   it  w^as  held  —  as 

1  Knox  V.  Protection  Ins.  Co.,  9  Conn,  diction  of  the  court  over  the  parties  or 
430.  controversy.     The   Code,   ch.    151,    §   2, 

2  Wales  V.  Muscatine,  4  Iowa,  302 ;  authorizes  the  plaintiff"  in  an  action  at 
Taylor  v.  Burlington  &  Mo.  R.  11.  Co.,  5  law,  on  proper  affidavit,  to  obtain  an  at- 
Ibid.  114.  tachment.    The  7th  section  provides  that 

3  Boyd  V.  Chesapeake  &  Ohio  Canal  every  such  attachment  may  be  levied  on 
Co.,  17  Maryland,  195.  any  estate,  real  or  personal,  of  the  de- 

4  Baltimore  &  Ohio  R.  R.  Co.  v.  Gal-  fendant;  and  that  it  shall  be  sufficiently 
lahue,  12  Grattan,  655.  The  court  said :  levied  by  the  service  of  a  copy  thereof 
"  The  next  error  assigned  is,  that  the  on  such  persons  as  may  be  in  possession 
court  erred  in  overruling  the  motion  to  of  effects  of,  or  known  to  be  indebted  to, 
discharge  the  attachment ;  the  plaintiff  tlie  defendant.  By  the  9th  section,  such 
in  error  insisting  that  a  corporation  is  persons  are  to  be  summoned  to  appear 
not  liable  as  a  garnishee,  under  the  at-  as  garnisliees.  The  12th  section  gives  a 
tachment  laws.  The  objection  is  gen-  lien  from  the  time  of  service,  upon  the 
eral,  applicable  to  all  corporations  ag-  personal  property,  choses  in  action,  and 
gregate,    without  reference  to  the  juris-  other  securities  of  the  defendant,  in  the 

25  [385] 


§470 


WHO   MAY   BE   GAENISHED. 


[chap.  XIX. 


doubtless  would  be  held  elsewhere — that,  though  not  mentioned 
in  the  statute  as  the  subject  of  garnishment,  a  corporation  is 
liable  thereto,  in  the  same  manner  as  a  natural  person. 


§  470.    Whatever  may  be  the 
tachment  on  a  corporation  as  a 

hands  of,  or  due  from,  any  such  gar- 
nishee. The  17th  section  provides  tiiat 
when  any  garnishee  appears  lie  siiall  be 
examined  on  oatli.  If  it  appear  on  such 
examination  that  he  was  indebted,  the 
court  may  order  liim  to  pay  the  amount 
so  due  by  him  ;  or  with  the  leave  of  the 
court  he  may  give  bond  to  pay  the  amount 
due  by  him  at  such  time  and  place  as  the 
court  may  thereafter  direct.  The  18th 
section  authorizes  the  court,  if  he  fails 
to  appear,  to  compel  him  to  ajipear,  or 
the  court  may  hear  proof  of  any  debt 
due  by  him  to  the  defendant,  and  make 
the  proper  order  thereupon.  And  the 
19th  section  authorizes  a  jury  to  be  im- 
panelled when  it  is  suggested  that  the 
garnishee  has  not  fully  disclosed  the 
debts  due  by  him  to,  or  effects  in  his 
hands  of,  the  defendant;  and  provides 
for  a  judgment  on  the  finding  of  the 
jury. 

"  From  this  review  of  the  material 
provisions  of  the  statute  bearing  upon 
this  question,  there  would  seem  to  be 
nothing  in  the  condition  of  a  corporation 
to  exempt  it  from  being  summoned  as  a 
garnishee.  When  the  word  person  is 
used  in  a  statute,  corporations  as  well 
as  natural  persons  are  included  for  civil 
purposes.  This  was  the  rule  at  common 
law.  They  are  to  be  deemed  and  taken 
as  persons,  when  the  circumstances  in 
•which  they  are  placed  are  identical  with 
those  of  natural  persons  expressly  in- 
cluded in  such  statutes.  And  the  Code 
provides  that  the  word  person  may  ex- 
tend and  be  applied  to  bodies  politic  and 
corporate  as  well  as  individuals.  The 
general  words  as  to  what  effects,  debts, 
or  estate  of  tlie  defendant  may  be  at- 
tached, would  seem  to  embrace  his  whole 
estate,  without  respect  to  the  character 
of  the  person,  natural  or  artificial,  in 
whose  hands  the  effects  were,  or  by 
whom  the  debt  was  due.  The  corpora- 
tion stands  in  precisely  tiie  same  posi- 
tion, in  regard  to  such  effects  or  debts, 
[886] 


statutory  mode  of  serving  an  at- 
garnishee,  a  service  in  a  mode 

as  a  natural  person.  If  it  owes  the  debt 
or  holds  the  effects  of  another,  it,  like 
an  individual,  is  liable  to  be  sued  by  its 
creditor  or  the  owner  of  the  property; 
and  the  statute  merely  substitutes  the 
plaintiff  in  the  attachment  to  the  rights 
of  the  creditor  or  owner  as  against  the 
garnishee.  No  change  is  made  in  its 
contract,  or  additional  obligation  imposed 
on  it,  by  being  proceeded  against  as  gar- 
nishee. The  only  particular  in  which 
there  is  any  departure  from  a  literal 
compliance  with  the  statute,  is  in  regard 
to  that  provision  of  the  17tli  section  which 
declares  that  when  any  garnishee  shall 
appear,  he  shall  be  examined  on  oath. 
This  clause  was  for  the  benefit  of  the 
plaintiff  in  the  attachment.  In  the  case 
of  a  corporation,  he  nmst  receive  an 
answer  in  the  only  mode  in  which  the 
corporation  can  answer,  under  its  corpo- 
rate seal.  In  chancery,  where,  as  a  gen- 
eral rule,  all  answers  must  be  verified  by 
oatii  or  affirmation,  a  corporation  must 
answer  in  the  same  way,  though  where 
a  discovery  is  wanted,  a  practice  has  pre- 
vailed of  making  some  of  the  officers  de- 
fendants. The  same  result  could  be 
arrived  at  under  the  attachment  law,  by 
examining  the  officers  as  witnesses,  if 
the  plaintiff  suggests  that  a  full  disclosure 
has  not  been  made.  This  is  an  incon- 
venience to  which  he  is  subjected,  grow- 
ing out  of  the  character  of  the  garnishee, 
but  furnishes  no  reason  for  exempting 
the  corporation  from  being  so  proceeded 
against,  when  all  the  other  words  of  the 
statute  are  sufficiently  comprehensive  to 
embrace  artificial  as  well  as  natural  per- 
sons. The  mischief  intended  to  be  rem- 
edied applies  as  well  to  debts  due  by 
them  as  by  individuals  ;  and  the  circum- 
stances in  which  tiiey  are  placed  are  the 
same  as  those  of  others  embraced  in  the 
statute.  A  fair  construction  of  the  stat- 
ute authorizes  the  proceeding  against  the 
corporation  in  a  proper  case." 


CHAP.  XIX.]  WHO   MAY   BE   GARNISHED.  §  471 

authorized  and  requested  by  the  president  and  directors  of  the 
corporation  will  be  binding  on  it.  It  was  so  held,  where  those 
officers  requested  that  notices  of  garnishment  should  be  delivered 
to  one  of  the  clerks  of  the  corporation.^  But  care  should  be  taken 
that  there  be  in  reality  a  service  on  the  corporation.  The  notice 
of  garnishment  may  be  served  on  its  officers,  but  not  be  a  service 
on  it.  Thus,  where  such  notice  was  served  on  the  Mayor,  Re- 
corder, and  Treasurer  of  a  city,  informing  them  and  each  of  them 
that  they  "  were  attached  and  held  as  garnishees  of  the  defend- 
ant, and  as  persons  holding  property  of  said  defendant;  "  it  was 
decided  to  be  no  service  on  the  corporation.^  So,  where  the  sum- 
mons of  garnishment  was  served  on  the  agent  of  a  foreign  corpo- 
ration, and  required  him  to  answer  what  he  owed  the  defendant.^ 
So,  where  notice  of  garnishment  was  served  on  A.  and  B.  as 
agents  of  a  foreign  insurance  company,  it  was  considered  insuffi- 
cient to  authorize  judgment  against  the  company.*  And  where 
the  statute  authorizes  garnishment  by  leaving  a  copy  of  the  writ 
with  the  person  owing  debts  to,  or  having  property  of  the  defend- 
ant in  his  possession,  "  or  with  his  agent ;  "  it  was  held,  that  the 
agent  must  be  a  managing  agent ;  and  therefore  that  service  upon 
the  teller  of  a  bank,  whose  sole  duty  was  to  receive  and  pay  out 
moneys  that  came  into  and  went  out  of  the  bank,  was  not  a  gar- 
nishment of  the  bank.^  And  where  the  law  required  service  on 
a  garnishee  to  be  personal,  but  did  not  prescribe  the  mode  of  gar- 
nishment of  a  corporation,  it  was  held,  that  service  upon  an  agent 
of  the  corporation  was  not  sufficient,  but  that  it  should  have  been 
made,  as  at  common  law,  upon  the  president,  or  other  officer  ful- 
filling the  duties  of  president.^  And  in  Connecticut,  it  was  de- 
cided that  a  corporation  could  not  be  charged  as  garnishee,  where 
no  legal  service  of  process  had  been  made  upon  it,  though  its 
secretary  appeared  and  answered,  and  made  no  objection  to  the 
sufficiency  of  the  service.'^ 

§  471.    Tlie  rules  governing  the  liability  of  a  corporation  as  a 
garnishee,  do  not  differ  from  those  applicable  to  the  case  of  an 

1  Davidson  v.  Donovan,  4  Cranch  C.  ^  Daniels  v.  Meinhard,  53  Georgia,  359. 

C.  578.  ^  Kennedy  v.   H.  L.  &  S.  Society,  38 

■•'  Claflin  V.  Iowa  City,  12  Iowa,  284;     California,  151. 
Greer  ;;.  Kuwlcy,  1  I'ittsburgii,  1.  *>  Clark  v.  Chapman,  45  Georgia,  486. 

'  Varneil  v.  JSpeer,  55  Georgia,  132.  ■*  Raymond  v.  Rockland  Co.,  40  Coon. 

401. 

[387] 


§  474  WHO  MAY  BE   GARNISHED.  [CHAP.  XIX. 

individual.  The  corporation  must  either  have  personal  property 
of  the  defendant  in  its  possession,  capable  of  being  seized  and  sold 
under  execution,  or  be  indebted  to  him.  Neither  of  these  condi- 
tions is  fulfilled  by  the  mere  fact  of  the  defendant  being  a  stock- 
holder in  tlie  corporation  ;  and  the  corporation  cannot  be  charged 
as  his  garnishee  on  that  account.^ 

§  472.  Different  views  are  entertained  as  to  the  manner  in  which 
a  corporation  shall  answer  as  garnishee.  In  Virginia  and  South 
Carolina,  it  must  answer  through  its  chief  officer  and  under  its 
common  seal.^  In  Alabama,  the  same  rule  exists,  with  the  fur- 
ther requirement,  that,  if  the  seal  be  used  by  another  than  the 
chief  officer,  it  should  appear  to  have  been  by  the  express 
authority  of  the  directors.  It  was  therefore  held,  that  an 
answer  of  a  corpoiation  put  in  by  its  cashier,  or  the  individual 
answer  under  oath  of  either  a  president  or  cashier,  is  not  suffi- 
cient.^ 

In  Illinois,  on  the  contrary,  where  the  statute  required  an  an- 
swer to  be  sworn  to  in  all  cases,  an  answer  of  a  corporation,  signed 
by  its  secretary  and  under  its  corporate  seal,  was  held  sufficient ; 
and  as  the  corporation  could  not  swear,  the  oath  of  a  proper 
officer,  or  of  an  agent  of  the  company,  was  considered  a  substan- 
tial compliance  with  the  statute.* 

In  Maine,  the  answer  can  only  be  made  by  an  agent  or  attor- 
ney of  the  corporation.  It  need  not  be  a  general  agent,  but  one 
specially  authorized  may  act  in  that  capacity,  whether  he  be  a 
member  of  the  corporation  or  not.^ 

§  473.  Concerning  the  residence  of  a  person,  as  affecting  his 
liability  to  garnishment,  it  is  well  settled,  that  under  the  custom 
of  London  one  cannot  be  charged  as  garnishee,  unless  he  reside 
within  the  jurisdiction  of  the  Lord  Mayor's  court.^ 

§  474.  In  this  country,  the  question  has  been  repeatedly  pre- 
sented, and  the  uniform  tenor  of  the  adjudications  establishes  the 

1  Planters  &  Merchants'  Bank  v.  *  Oliver  v.  C.  &  A.  R.  R.  Co.,  17  lUi- 
Leavens,  4  Alabama,  753 ;  Ross  v.  Ross,     nois,  587. 

25  Georgia,  297.  5  Head  v.  Merrill,  34  Maine,  586. 

2  Callahan  v.  Hallowell,  2  Bay,  8 ;  ''1  Saunders's  II.  67,  Note  a ;  Tamm 
Baltimore  &.  O.  R.  R.  Co.  v.  Gallahue,  12  v.  Williams,  2  Chitty,  438;  3  Douglass, 
Grattan,  655.  281 ;  Crosby  v.  Hetlierington,  4  Manning 

^  Branch   Bank   v.   Poe,  1   Alabama,  &    Granger,   933 ;    Day   v.   Paupierre,  7 

396;    Planters   &   Merchants'    Bank    v.  Dowliiig  &  Lowndes,  12 ;  13  Adolphus  & 

Leavens,  4  Ibid.  753.  Ellis,  n.  s.  802. 
[388] 


CHAP.  XIX.]  TTHO   MAY   BE   GARNISHED.  §474 

doctrine,  that  whether  the  defendant  reside  or  not  in  the  State  in 
which  the  attachment  is  obtained,  a  non-resident  cannot  be  sub- 
jected to  garnishment  there,  unless,  when  garnished,  he  have  in 
that  State  property  of  the  defendant  in  his  hands,  or  be  bound  to 
pay  the  defendant  money,  or  to  deliver  to  him  goods,  at  some  par- 
ticular place  in  that  State. 

As  in  many  other  questions  in  the  law  of  attachment,  Massa- 
chusetts was  the  first  to  pass  upon  this  point,  in  a  case  where  both 
defendant  and  garnishee  were  non-residents.  The  Supreme  Court 
there  said  :  "  The  summoning  of  a  trustee  is  like  a  process  in  rem. 
A  chose  in  action  is  thereby  arrested  and  made  to  answer  the  debt 
of  the  principal.  The  person  entitled  by  the  contract  of  the  sup- 
posed trustee  is  thus  summoned  by  the  arrest  of  this  species  of 
effects.  These  are,  however,  to  be  considered  for  this  purpose  as 
local,  and  as  remaining  at  the  residence  of  the  debtor  or  person 
intrusted  for  the  principal,  and  his  rights  in  this  respect  are  not 
to  be  considered  as  following  the  debtor  to  any  place  where  he 
may  be  transiently  found,  to  be  there  taken  at  the  will  of  a  third 
person,  within  a  jurisdiction  where  neither  the  original  creditor 
nor  debtor  resides."  ^ 

When  the  point  arose  again,  the  defendant  was  a  resident,  and 
the  garnishee  a  non-resident,  and  the  court  maintained  its  pre- 
vious position. 2  The  same  ground  has  been  taken  in  Maine,  New 
Hampshire,  Vermont,  Connecticut,  New  York,  and  the  District  of 
Columbia.^ 

1  Tingley  v.  Bateman,  10  Mass.  343 ;  reference  to  tliis  action.  The  indebteJ- 
Nye  V.  Liscomb,  21  Pick.  263.  See  ness  attempted  to  be  reached  is  between 
Wheat  V.  P.  C.  &  F.  D.  R.  R.,  4  Kansas,  parties  resident  in  otlier  jurisdictions, 
370.  who  have  never  been  domiciled  within 

2  Ray  V.  Underwood,  3  Pick.  302 ;  Hart  this  State,  payable,  and  to  be  discharged 
V.  Anthony,  15  Ibid.  44-5.  in  the  foreign  jurisdiction.     But  it  is  well 

3  Lovejoy  v.  Albree,  33  Maine,  414 ;  settled  that  a  chose  in  action  is  not 
Jones  V.  Winchester,  6  New  Hamp.  497  ;  reached  by  the  trustee  process,  under 
Lawrence ';.  Smith,  4-5  Ibid.  533;  Sawyer  circumstances  like  the  present.  It  is 
V.  Thompson,  4  Foster,  510;  Baxter  v.  regarded  as  having  a  situs  and  locality 
Vincent,  6  Vermont,  G14  ;  Green  v.  Far-  where  the  party  resides.  The  payment 
mers  &  Citizens'  Bank,  25  Conn.  452;  cannot  be  enforced  within  this  jurisdic- 
Bates  V.  New  Orleans,  &c.,  R.  R.  Co.,  4  tion,  by  this  process,  of  a  debt  due  from 
Abbott  Pract.  72 ;  Willot  v.  Equitable  a  debtor  residing  in  anotlier  State,  and 
Ins.  Co.,  10  Ibid.  193;  Miller  v.  Hooe,  payable  in  that  jurisdiction.  A  chose  in 
2  Cranch,  C.  C.  022.  In  Sawyer  v.  action,  in  reference  to  the  foreign  process, 
Tliompson,  the  grounds  taken  by  the  stands  precisely  upon  the  same  ground  as 
Superior  Court  of  New  Hampshire  were  chattels  of  tlie  principal  debtor,  found  in 
as  follows :  "  The  present  is  an  attempt  the  possession  of  tiie  trustee,  located  and 
to  charge  the  trustee  for  a  chose  in  action,  deliverable  to  him  in  another  State.  The 
which  is  in  the  law  regarded  as  local  in  trustee  is  no  more  answerable   for  the 

[389] 


§475 


WHO   MAY   BE   GARNISHED. 


[chap.  XIX. 


§  475.  This  doctrine,  however,  .as  previously  intimated,  does 
not  apjily,  where  the  garnishee  has  in  his  hands,  in  the  State  in 
which  he  is  summoned,  property  of  the  defendant,  or  has  con- 
tracted to  pay  money  or  dehver  goods  to  the  defendant  at  some 
particular  place  in  that  State.  In  regard  to  this  condition  of 
things,  the  Superior  Court  of  New  Hampshire  said  :  "  Tlie  prop- 
erty was  attached  in  the  trustee's  hands,  while  in  his  possession 
in  this  State.  If  he  had  not  the  property  with  him,  but  had  left 
it  at  his  residence,  it  could  not  be  said  that  it  was  attached  here ; 


cluise  in  action,  payable  in  the  foreign 
jurisiliction,  than  for  the  goods  that  are 
located  there.  No  lien  is  created  by  the 
service  of  the  process  upon  either.  Both 
classes  of  property  are  equally  local.  To 
compel  a  performance  of  the  contract  in 
reference  to  either  class  of  property,  in  a 
jurisdiction  different  from  that  of  the 
stipulated  performance,  would  be  to  allow 
a  creditor  of  the  principal  debtor  to  en- 
force a  contract  in  a  manner  different 
from  its  legal  effect  and  from  the  agree- 
ment of  the  parties."  In  Vermont,  in 
Baxter  v.  Vincent,  iit  supra,  the  matter 
arose  in  such  a  shape  as  to  involve  the 
construction  of  three  statutes,  passed  in 
1797,  1817,  and  1830,  the  last  two  of  which 
seemed  to  require  the  garnishee  to  be  a 
resident  of  the  State,  while  the  first  did 
not.  The  following  portions  of  the  opin- 
ion of  the  court  discuss  other  points  than 
those  embraced  in  the  cases  cited  from 
Massachusetts  and  New  Hampshire.  The 
court  say  :  "  It  should  be  borne  in  mind, 
that  the  proceeding  against  the  trustee  is 
not  an  original  or  distinct  action.  The 
direct  suit  is  between  the  creditor  and 
principal  debtor,  and  this  is  but  a  species 
of  attachment,  incidental  to  that  suit,  and 
dependent  upon  it.  And  hence  the  gen- 
eral rule,  that  any  person  coming  into 
this  State  is  allowed  to  institute,  or  may 
be  holden  to  defend,  a  transitory  personal 
action,  is  not  conclusive  of  the  question. 
The  object  of  these  statutes  is  to  furnish 
a  remedy  against  the  funds  and  effects  of 
the  debtor,  when  in  consequence  of  his 
having  concealed  himself,  or  being  be- 
yond the  reach  of  ordinary  process,  the 
usual  remedies  cannot  be  enforced  against 
liim  personally.  And  the  course  pointed 
out,  to  bind  the  effects  for  the  benefit  of 
the  creditor,  has  been  considered  as  some- 
[390] 


what  analogous  to  proceedings  in  rem, 
while  in  the  mode  of  trial  it  has  been 
likened  to  a  hearing  in  chancery.  A  judg- 
ment in  relation  to  the  effects,  whether  it 
be  for  or  against  the  trustee,  is  not  un- 
derstood to  have  the  effect  of  an  adjudi- 
cation as  between  him  and  the  principal 
debtor.  If  the  tru  tee  is  made  liable  as 
such,  he  is  protected  against  the  principal 
debtor,  only  to  the  amount  for  which  he 
is  so  charged  in  favor  of  the  cre<litor  ;  — 
or,  in  other  words,  a  payment  to  the  cred- 
itor in  obedience  to  this  process  is  legal- 
ized, pro  tanto,  as  if  made  to  the  principal 
debtor. 

"  The  statutes  evidently  presuppose 
such  a  jurisdiction  over  the  trustee,  that, 
ordinarily,  their  provisions  may  be  car- 
ried into  full  execution  against  him,  by 
the  means  which  they  have  provided. 
But  these  means  must  prove  very  inad- 
equate to  their  object,  when  neither  the 
trustee  nor  the  effects  can  be  reached,  by 
the  first  execution,  nor  the  trustee  served 
with  the  necessary  process,  preparatory 
to  the  second  and  conclusive  judgment 
against  him.  And  although  this  consid- 
eration might  have  less  weight  in  those 
cases  where  execution  is  authorized  di- 
rectly against  the  trustee  in  the  first 
instance,  yet  as  such  a  case  is  not  to  be 
anticipated,  but  depends  upon  the  nature 
of  his  accountability  to  the  principal 
debtor,  which  can  only  appear  by  the 
disclosure  or  other  evidence  on  trial,  the 
distinction  furnishes  no  aid  upon  a  pre- 
liminary question  of  jurisdiction.  If, 
therefore,  the  question  rested  solely  upon 
the  statute  of  1797,  we  should  incline 
to  decide,  that  none  but  persons  resident 
in  this  State  could  properly  be  holden  as 
trustees."  Sed  contra,  Morgan  v.  Neville, 
7'i  I'enn.  State,  52. 


CHAP.  XIX.]  WHO   MAY  BE   GARNISHED.  §  477 

but  having  it  with  him,  we  see  no  reason  why  it  might  not  be 
attached  in  this  way,  as  well  as  if  it  had  been  visible  personal 
property  of  the  defendant's,  and  taken  by  the  officer.  If  the 
trustee  had  brought  into  this  State  the  goods  and  chattels  of  the 
defendant,  and  had  himself  no  special  property  in  them  which 
might  give  him  the  power  to  remove  them  from  the  State,  they 
could,  no  doubt,  have  been  attached  and  held  on  a  writ  against 
the  defendant ;  and  it  appears  to  us  that  no  well-founded  dis- 
tinction can  be  pointed  out  between  such  a  case  and  one  where 
the  trustee  has  about  his  person,  at  the  time  the  writ  is  served 
upon  him,  the  money  and  notes  of  the  defendant."  ^ 

§  476.  When  one  is  summoned  as  garnishee  in  a  State  of  which 
he  is  not  a  resident,  it  is  necessary,  for  his  own  protection,  that 
he  should  answer  to  the  proceeding,  and  avail  himself  of  what- 
ever defence  he  has  against  liability ;  or  he  will  be  liable  to  a 
judgment  by  default  against  him,  if  the  law  under  which  he  was 
summoned  authorize  that  course  of  proceeding ;  for,  by  the  ser- 
vice of  the  process,  the  court  acquires  jurisdiction  of  his  person, 
and  the  question  whether  it  has,  or  can  take,  jurisdiction  of 
the  effects  in  his  hands,  can  only  be  raised  by  himself  upon  his 
answer.^ 

§  477.  The  exemption  from  garnishment  on  account  of  non- 
residence  is  not  to  be  pushed  beyond  the  reason  of  the  rule, 
which  rests  upon  the  idea  that  the  property  or  debt  sought  to  be 
reached  is  without  the  jurisdiction  of  the  court,  and,  for  that 
reason,  incapable  of  being  subjected  to  its  process.  Therefore,  if 
several  joint  debtors  be  garnished,  part  of  whom  are  residents 
and  part  non-residents,  the  jurisdiction  will  extend  to  all,  in  vir- 
tue of  the  residence  of  those  within  the  State.  This  was  decided 
in  Vermont,  under  a  statute  which  provided  "  that  no  person 
shall  be  summoned  as  trustee,  unless  at  the  time  of  the  service 
of  the  writ  he  resides  in  this  State."  Four  persons,  members  of 
a  firm  existing  in  the  State,  were  summoned  as  garnishees,  two 
of  whom  were  residents  of  the  State  of  New  York.  It  was 
claimed  that  none  of  them  were  chargeable,  because  the  two 
non-residents  being  specially  excepted  from  the  act,  all  the  mem- 

1  Young  V.  Ross,  11  Foster,  201.  '^  Lawrence  v.  Smith,  45  New  Hamp. 

533. 

[391] 


§  478  WHO   MAY  BE   GARNISHED.  [CHAP.  XIX. 

bers  of  the  firm  were  likewise  excepted,  as  none  were  liable  to  be 
prosecuted  on  the  joint  claim  unless  all  were,  or  could  be  made, 
legal  parties  to  the  record.  But  the  court  held,  that  the  statute 
applied  only  to  cases  where  all  the  garnishees  resided  in  another 
State,  and  not  to  a  case  where  some  of  them  were  residents  of 
Vermont,  where  the  partnership  was  formed  and  had  its  place 
of  business  ;  and  that,  if  the  effects  in  their  hands  are  considered 
local,  and  as  remaining  at  the  residence  of  the  garnishee,  they 
must  be  regarded  as  remaining  where  the  partnership  was  formed, 
its  business  transacted,  and  two  of  its  members  resided.^ 

§  478.  The  principles  which  would  exempt  non-residents  from 
garnishment  produce  the  same  result  in  the  case  of  a  foreign 
corporation.  This  was  so  determined  in  Massachusetts,  though 
the  officers  of  the  corporation  resided,  and  its  books  and  records 
were  kept,  in  that  State,  and  though  the  statute  there  declares 
that  "  all  corporations  may  be  summoned  as  trustees."  The  very 
generality  of  the  terms  is  considered  to  require  some  qualification. 
"  It  cannot,"  said  the  court,  "  be  construed  literally  all  corpora- 
tions, in  whatever  part  of  the  world  established  and  transacting 
business.  The  answer  is  to  be  found  in  the  statutes  in  jjari 
materia  then  existing.  The  statute  in  question  was  only  an  ex- 
tension of  an  existing  s^'stem  ;  it  was  intended,  we  think,  to  put 
corporations  on  the  same  ground  as  individuals.  And  it  is  well 
settled  that  an  individual,  an  inhabitant  of  another  State,  is  not 
chargeable  by  the  trustee  process,  although  found  in  this  common- 
wealth, and  here  served  with  process.  In  the  case  of  corporations 
which  have  no  local  habitation,  the  principle  is  this  :  if  established 
in  this  commonwealth,  by  the  laws  thereof,  they  are  inhabitants 
of  this  commonwealth,  within  the  meaning  of  the  law ;  but  if 
established  onl}'  by  the  laws  of  another  State,  they  are  foreign 
corporations,  and  cannot  be  charged  by  the  trustee  process."  ^ 
The  same  views  obtain  in  New  Hampshire.^ 

But  in  Pennsylvania,  a  foreign  railroad  corporation  was  held 
as  garnishee,  where  it  had  accepted  from  that  State  the  privilege 
of  extending  its  road  through  one  of  the  counties  thereof,  coupled 
with  a  provision  in  the  act  granting  the  privilege,  which  required 

1  Peck  V.  Barnum,  24  Vermont,  75.  424  ;  Bradford  v.  Mills,  5  Rhode  Island, 

2  Danforth  v.  Penny,  3  Metcalf,  564;     393  ;  Larkin  v.  Wilson,  100  Mhss.  120. 
Gold  V.  Housatonic  Railroad  Co.,  1  Gray,  ^  Smith  v.  B.  C.  &  M.  Railroad,  33 

New  11  amp.  337. 

[392] 


CHAP.  XIX.]  WHO   MAY   BE   GARNISHED.  §  479 

the  company  "  to  keep  at  least  one  manager,  toll-gatherer,  or 
other  officer,  a  resident  in  the  county;"  on  whom  service  of  pro- 
cess "  in  all  suits  or  actions  which  may  be  brought  against  said 
company,"  was  declared  to  be  "  as  good  and  available  in  court  as 
if  made  on  the  president  thereof."  ^  And  in  Missouri,  under  a 
statute  which  provided  that  "  notice  of  garnishment  shall  be 
served  on  a  corporation,  in  writing,  by  delivering  such  notice, 
or  a  copy  thereof,  to  the  president,  secretary,  treasurer,  cashier, 
or  other  chief  or  managing  officer  of  such  corporation,"  it  was 
held,  that  a  foreign  insurance  company,  having  an  agency  in  that 
State,  might  be  garnished,  by  serving  the  notice  upon  the  agent ; 
who,  for  that  purpose,  would  be  regarded  as  a  "  managing 
officer,"  within  the  meaning  of  the  statute.^  And  in  Wisconsin, 
under  a  statute  providing  that  "  a  corporation  may  be  summoned 
as  garnishee  by  service  of  notice  to  appear  and  answer,  upon  the 
president,  cashier,  treasurer,  secretary,  or  other  agent  or  officer 
of  the  corporation  upon  whom  a  summons  may  by  law  be  served 
in  cases  Avhere  an  action  is  commenced  against  such  corporation," 
it  was  held,  that  a  foreign  corporation  was  liable  to  garnishment 
by  service  of  notice  upon  its  agent.^  And  in  Maryland,  where 
the  statute  authorized  suits  by  non-residents  against  foreign  cor- 
porations exercising  franchises  there,  "  when  the  cause  of  action 
has  arisen,  or  the  subject  of  the  action  shall  be  situated  in  this 
State,"  it  was  held,  that  a  British  insurance  company,  doing  busi- 
ness there  through  an  agent,  could  not  be  charged  as  garnishee 
on  account  of  a  loss  under  a  policy  issued  to  non-residents,  by  an 
agent  in  Chicago,  Illinois,  upon  property  in  that  city ;  because 
the  holders  of  the  policy  could  not  sue  the  company  thereon  in 
Maryland.*  And  where  an  agent  upon  whom  the  process  is 
served  is  a  non-resident,  and,  when  served,  is  only  casually  in 
the  State,  no  attachment  of  the  debt  is  effected.^ 

§  479.  Where,  as  is  sometimes  the  case,  a  corporation  is  char- 
tered by  two  or  more  States,  it  is  not  in  any  of  those  States  a 

1  Jones  V.  New  York  &  Erie  R.  R.  Co.,  21  Wisconsin,  50G.     See  Selma  R.  &  D. 
1  Grant,  457;  Fithian   v.   New    York   &  II.  R.  Co.  v.  Tyson,  48  Georgia,  351. 
Erie  R.  R.  Co.,  .31  Penn.  State,  114.  ■»  Myer  v.  Liverpool  L.  &  G.  Ins.  Co., 

2  McAllister  v.  Fenn.  Ins.  Co.,  28  Mis-  40  Maryland,  505. 

souri,  214.  5  Willet  v.  Equitable  Ins.  Co.,  10  Ab- 

"*  Brauser  v.  New  England  E.  I.  Co.,     bott  Tract.  193. 

[393] 


§  479  "WHO  MAY   BE   GARNISHED.  [CHAP.  XIX. 

foreign  corporation,  and  may  be  subjected  to  garnishment  in  any 
of  them,  though  its  office  and  place  of  business  be  not  in  the 
State  in  which    the  garnishment  takes  place. ^ 

1  Baltimore  &  Ohio  II.  R.  Co.  v.  Gal-     Sprague  v.  Hartford,  P.  &  F.  R.  R.  Co. 
lahue,  12  Grattan,  655;  Smith  v.  B.  C.  &     5  Rhode  Island.  233. 
M.  Railroad,  33  New  Hamp.  337.     See 
[394] 


CHAP.  XX.]    WHAT  PROPERTY  WILL  CHARGE  GARNISHEE.       §  480 


CHAPTER     XX. 

WHAT   PERSONAL  PROPERTY  IN  THE  GARNISHEE'S   HANDS  WILL 
MAKE   HIM   LIABLE. 

§  480.  The  rule  that  the  personal  property  in  the  garnishee's 
hands  in  respect  of  which  he  may  be  charged,  must  be  such  as  is 
capable  of  being  seized  and  sold  on  execution,^  results  from  the 
consideration  that  he  should  be  at  liberty,  if  he  wish,  to  discharge 
himself  from  pecuniary  liability,  by  delivering  the  property  into 
the  custody  of  the  tribunal  before  which  he  is  summoned  ;  and 
therefore,  that  he  should  not  be  charged  for  that  which,  if  so  de- 
livered, could  not  be  sold  under  execution.  Therefore,  where  a 
garnishee  admitted  that,  when  summoned,  he  had  in  his  posses- 
sion a  horse  of  the  defendant's,  but  showed  that  the  horse  was 
by  law  exempt  from  execution  against  the  defendant,  he  was 
held  not  chargeable.^  This  rule  applies  to  the  proceeds,  in 
money,  of  exempted  real  estate  sold  under  execution,  under  a 
statute  authorizing  such  to  be  awarded  to  a  debtor  in  lieu  of  the 
propert}^ ;  ^  and  also  to  money  recovered  by  a  debtor  for  the  value 
of  propert}^  exempt  from  execution  which  had  been  seized  and 
sold.*  But  if  the  owner  of  property  so  exempt  sell  the  same,  the 
debt  due  him  therefor  may  be  attached.^  And  if  property  ex- 
empt from  execution  be  destroyed  by  fire  while  insured,  the 
insurance  company  may  be  charged  as  garnishee  of  the  owner 
for  the  amount  due  under  the  policy .^^     And  if  money  which,  be- 

1  Ante,  §  463.  mas  v.  Biddle,  13  Penn.  State,  223.     See 

2  Davenport  v.  Swan,  9  Humphreys,  Deacon  v.  Oliver,  14  Howard  Sup.  Ct. 
186;  Staniels  v.  Raymond,  4  Cushing,  610 ;  Moore  r.  Gennett,  2  Tennessee  Ch'y, 
314;    Fanning    v.   First   Nat.    Bank,    76  375. 

Illinois,  53.    Wiiere  one  held  a  certificate  ^  Qery   v.   Ehrgood,   31   Penn.  State, 

of  .ihares  of  stock  in  a  bank  in  anotlier  329. 

State,  in  favor  of  the  defendant,  it  was  *  Stebbins  v.  Peeler,  29  Vermont,  289. 

held,  that   he   could   not   be  charged  as  ^  Scott  ;;.  Brigham,  27  Vermont,  561 ; 

garnishee  in  respect  thereof;  because  the  Knabb  v.  Drake,  23  Penn.  State,  489. 

court  could  not  subject  either  the  certifi-  ^  Wooster   v.   Page,    54   New  Hamp. 

cate  or  the  stock  to  its  execution.    Christ-  125. 

[395] 


§  481       WHAT  PROPERTY  WILL  CHARGE  GARNISHEE.    [CHAP.  XX. 

fore  its  jiaynient  to  the  defendant,  could  not  he  reached  1)}'  qar- 
nisliment,  by  reason  of  its  bein<^  exempted  from  attaclniient,  be, 
after  its  payment,  lent  out  by  him,  the  borrower  may  be  subjected 
to  liability  on  account  of  it,  as  g^arnishee  of  the  defendant.  This 
was  hold,  in  reference  to  a  soldier's  l)onnty  voted  by  a  to\vn  ; 
which,  before  its  payment  to  the  soldier,  could  not  be  attached, 
by  the  garnishment  of  the  to\vn  ;^  but  after  its  payment  could 
be  reached  by  the  garnishment  of  a  person  to  whom  it  was  lent.^ 

The  garnishee,  in  such  cases,  may  object  to  such  property 
being  held  by  the  attachment,  though  the  defendant  do  not  raise 
the  question  ;  ^  for  if  the  former  know  of  the  exemption,  and  fail 
to  bring  it  to  the  notice  of  the  court,  and  thereby  be  charged  as 
garnishee,  the  judgment  will  be  no  protection  to  him.* 

In  some  States  laws  exist  exempting  from  attachment  a  certain 
amount  of  money  due  to  a  head  of  a  family.  In  such  case  it  is 
the  duty  of  a  defendant  to  furnish  the  garnishee  with  the  in- 
formation and  means  to  prove  the  fact  of  exemption,  or  himself 
to  prove  it ;  and  it  is  the  right  and  duty  of  the  defendant,  if 
judgment  is  erroneously  given  against  the  garnishee,  to  have  it 
set  aside,  or  to  appeal  from  it ;  and  if  he  fail  in  these  several  re- 
spects, he  is  bound  l)y  the  judgment  against  the  garnishee,  and 
cannot  impeach  it  collaterally.^ 

§  481.  It  has  been  uniformly  held,  that  one  having  in  his 
possession  promissory  notes,  or  other  chases  in  action,  of  the  de- 
fendant's, cannot  in   respect  thereof  be  charged  as  garnishee.^ 

1  Brown  v.  Heath,  45  New  Harap.  Hopkins  ik  Ray,  1  Metcalf,  79 ;  Meacham 
168.  V.  McCorbitt,  2  Ibid.  352;  N.  H.  I.  F.  Co. 

2  Manchester  v.  Burns,  45  New  Hamp.  v.  Piatt,  5  New  Hamp.  193 ;  Stone  v. 
482.  Dean,  Ibid.  502 ;  Fletolier  v.  Fletcher,  7 

*  Clark  V.  Averill,  .31  Vermont,  512;  Ibid.  452;  Howland  v.  Sp?ncer,  14  Ibid. 

Winterfield  v.  Milwaukee  &  St.  P.  R.  R.  530 ;  Hitchcock  v.  Egerton,  8  Vermont, 

Co.,  29  Wisconsin,  589.  202;  Van  Amee  v.  Jackson,  35  Ibid.  173  ; 

4  Lock  V.  Johnson,  36  Maine,  464 ;  Fuller  v.  Jewett,  37  Ibid.  473  ;  Rundlet 
Pierce  c.  Chicago  &  N.  R.  Co.,  36  Wis-  v.  Jordan,  3  Maine,  47  ;  Copeland  v. 
consin,  283.  Weld,   8   Ibid.   411  ;  Clark   v.  Viles,  32 

5  Wigwall  V.  Union  C.  &  M.  Co.,  37  Ibid.  32 ;  Wilson  v.  Wood,  34  Il)id.  123 ; 
Iowa,  129.  Smith  v.  Kennebec  &  Portland  R.  R.  Co., 

6  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  45  Ibid.  547 ;  Skowhegan  Bank  v.  Farrar, 
Mass.  438 ;  Perry  v.  Coates,  9  Ibid.  537  ;  46  Ibid.  293  ;  Bowker  v.  Hill,  00  Ibid. 
Dickinson  r.  Strong,  4  Pick.  57;  An-  172;  Fitch  w.  Waite,  5  Conn.  117;  Gros- 
drews  u.  Ludlow,  5  Ibid.  28 ;  Lupton  v.  venor  v.  Farmers  &  Mechanics'  Bank,  13 
Cutter,  8  Ibid.  298  ;  Gore  v.  Clisby,  Ibid.  Ibid.  104 ;  Jones  v.  Norris.  2  Alabama, 
555;    Guild  v.  Holbrook,   11    Ibid.    101;  526;    Marston    v.    Carr,    16    Ibid.    325; 

[396] 


CHAP.  XX.]    WHAT  PEOPERTY  WILL  CHARGE  GARNISHEE.       §  481 

Therefore,  where  it  appeared  from  the  garnishee's  answer  that  he 
had  become  security  for  the  defendant,  and  that  the  defendant, 
in  order  to  indemnify  him,  had  placed  in  his  hands  certain  notes 
of  third  persons,  the  property  of  the  defendant,  it  was  held,  that 
the  notes,  not  being  personal  property  capable  of  being  seized 
and  sold  on  execution,  the  garnishee  was  not  liable  ;  and  that  it 
made  no  difference  whether  the  proceeds  of  the  notes  were 
necessary  or  not  for  the  indemnification  of  the  garnishee.^  So, 
where  the  garnishee  disclosed  that  he  held  a  certain  amount  of 
the  notes  or  bills  of  the  Hillsborough  Bank,  which  had  been  pre- 
sented for  payment  and  refused,  and  which  belonged  to  the 
defendant,  it  was  decided  that  such  bills  or  notes  were  nothing 
more  than  promissory  notes  negotiable  by  delivery,  and,  being 
mere  choses  in  actioti,  the  garnishee  could  not  be  charged  in  re- 
spect thereof.2  But  where  a  garnishee  had  received  for  the 
defendant  bank-bills  which  were  current  as  money,  he  was  charged.^ 
Where  it  appeared  that  the  garnishee  had  received  from  the  de- 
fendant the  evidence  of  a  contract  made  by  a  third  person, 
engaging  to  deliver  to  the  defendant  three  hundred  barrels  of 


Pearce  v.  Shorter,  50  Ibid.  318  ;  Moore 
V.  Pillow,  3  Humphreys,  448  ;  Raiguel  v. 
McConnell,  25  Peiin.  State,  3(J2;  Allen 
V.  Erie  City  Bank,  57  Ibid.  129  ;  Wilson 
V.  Albright,  2  G.  Greene,  125;  Deacon  v. 
Oliver,  14  Howard  Sup.  Ct.  610;  Price 
V.  Brady,  21  Texas,  614  ;  Taylor  v.  Gil- 
lian, 23  Ibid.  508 ;  Tirrell  v.  Canada,  25 
Ibid.  455  ;  Ellison  v.  Tuttle,  26  Ibid.  283. 

1  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7 
Mass.  438 ;  Dickinson  v.  Strong,  4  Pick. 
57. 

2  Perry  v.  Coates,  9  Mass.  537.  In 
Massachusetts  this  case  occurred.  The 
Suti'olk  Bank  was  summoned  as  gar- 
nishee of  the  Kaliant  Bank,  at  a  time 
when,  under  an  arrangement  between 
the  two,  the  former  had  in  its  possession 
a  large  amount  of  the  notes  of  the  latter 
issued  as  a  circulating  medium,  and 
which  the  statute  of  that  State  author- 
ized to  be  attached.  It  appeared  that 
the  Suffolk  Bank  was  accustomed  to 
take  up  the  bills  of  the  Is'ahant  Bank  in 
the  connnon  course  of  business,  to  charge 
the  amount  to  the  latter,  and  from  time 
to  time  to  return  the  bills  thus  charged 
to  the  JS'aluint  Bank  ;  and  that  to  meet 


the  amounts  so  charged,  the  Nahant 
Bank  was  accustomed  to  place  funds 
with  the  Suffolk  Bank,  which  went  to 
balance  the  account.  The  question  was, 
whether  the  Suffolk  Bank  could  be 
charged  as  garnishee  in  respect  of  its 
possession  of  the  bills  of  the  Nahant 
Bank.  The  court  held,  that  the  Suffolk 
Bank  must  be  considered,  either,  as  the 
agent  of  the  Nahant  Bank,  taking  up  the 
bills  of  the  latter  for  its  account  out  of 
funds  provided  for  it,  or  advanced  by 
the  Sutiblk  Bank  for  that  purpose, — in 
which  case,  the  notes,  when  so  taken  up, 
were  no  longer  bills  issued  and  circulated 
as  money,  and  therefore  not  attachable, 
—  or  as  holders  of  the  bills  on  their  own 
account,  for  value,  and  entitled  to  hold 
them  as  vouchers  to  support  the  charges 
in  their  account,  and  thus  cancel  and 
discharge  the  credits  given  l>y  them  to 
the  Nahant  Bank ;  and  that  in  either 
view  the  Suffolk  Bank  was  not  charge- 
able. Wildes  V.  Nahant  Bank,  20  Pick. 
352. 

3  Morrill    v.   Brown,    15    Pick.    173; 
Lovejoy  v.  Lee,  35  Vermont,  430. 

[397] 


§  481        WHAT  PROPERTY  WILL  CHARGE  GARNISHEE.    [CHAP.  XX. 

beef,  described  as  being  under  Boylston  Market,  such  contract 
was  held  to  be  a  mere  chose  In  action,  and  not  attachable  in  the 
garnishee's  hands. ^  So,  where  persons  to  whom  the  defendant 
had  made  an  assignment,  for  the  benefit  of  creditors,  of  goods 
and  merchandise,  book  debts,  promissory  notes,  and  other  choses 
in  action,  were  garnished,  under  such  circumstances  that,  if  they 
had  had  goods  or  money  in  their  possession  they  would  have  been 
liable,  it  was  held  that,  having  only  choses  in  action,  they  could 
not  be  charged.^  So,  where  an  assignee  for  the  benefit  of  cred- 
itors had  sold  the  assigned  effects  on  credit,  and  taken  notes 
from  the  purchasers,  and  before  the  maturity  of  the  notes  he  was 
garnished,  it  was  decided  that  he  could  not  be  charged .^  So, 
where  A.  caused  goods  to  be  insured  against  loss  by  fire,  and  the 
policy  provided  that,  in  case  of  a  loss,  payment  should  be  made 
to  B.,  who  held  a  mortgage  on  the  goods.  The  goods  were  de- 
stroyed by  fire,  and  immediately  after,  and  before  the  loss  had 
been  proved  according  to  the  provisions  of  the  policy,  B.  was 
garnished.  Afterwards  B.  received  the  amount  of  the  loss, 
retained  what  was  due  him,  and  paid  the  balance  on  A.'s  order 
to  a  third  person.  It  was  decided  that  the  right  to  collect  the 
money  accruing  under  the  policy  was  a  mere  chose  in  action,  and 
that  B.  was  not  liable.*  So,  an  attorney  who  has  in  his  care  a 
debt  in  the  course  of  collection,  belonging  to  a  defendant  in 
attachment,  cannot  be  holden  as  garnishee  on  that  account.^  So, 
a  note  deposited  in  one's  hands,  and  not  collected,  will  not  sub- 
ject him  as  garnishee,  even  though  a  judgment  has  been  recov- 
ered on  it  in  his  name.^  So,  where  a  person  holds  real  estate 
upon  a  promise  to  sell  it  and  pay  over  the  proceeds,  and  he  sells 
it,  and  takes  notes  for  the  purchase-money,  he  cannot  be  held  as 
garnishee,  in  respect  of  the  notes.''  So,  where  one  had  con- 
tracted to  deliver  to  another,  at  a  certain  time,  a  note  of  a  third 
person,  for  a  given  amount,  and  before  the  time  of  delivery  he 

1  Andrews  v.  Ludlow,  5  Pick.  28.  5  Hitchcock   v.   Egerton,  8  Vermont, 

2  Lupton  V.  Cutter,  8  Pick.  298  ;  Gore     202  ;  Fitch  v.  Waite,  5  Conn.  117 

V.  Clisby,  8  Ibid.  655;  Copeland  v.  Weld,  *>  Kundlet  v.  Jordan,  3  Maine,  47. 

8  Maine,  411.  7  Guild  v.  Holbrook,  11  Pick.  lOL 

3  Hopkins  v.  Ray,  1  Metcalf,  79. 

*  Meacham  v.  McCorbitt,  2  Metcalf, 
352, 

[398] 


CHAP.  XX.]    WHAT  PROPERTY  "WILL  CHARGE  GARNISHEE.        §  481 

was  garnished,  it  was  held,  that  he  could  not  be  charged.^  So, 
where  one  had  received  a  check,  with  authority  to  draw  the 
amount,  and  pay  it  to  the  defendant  on  certain  conditions,  which 
had  been  complied  with ;  but  it  did  not  appear  that  he  had 
received  the  money  ;  it  was  decided  that  he  could  not  be  charged 
on  account  of  the  check.^ 

1  New  Hamp.  I.  F.  Co.  v.  Piatt,  5  New     Hancock  v.  Colyer,  99  Mass.  187 ;  Knight 
Hamp.  193.  v.  Bowley,  117  Ibid.  551. 

2  Lane  v.  Felt,   7    Gray,    491.      See 

[399] 


§482 


WHAT  POSSESSION 


[chap.  XXI. 


CHAPTER    XXI. 

"WHAT   POSSESSION   OF   PERSONAL    PROPERTY    BY   A   GARNISHEE 
WILL   MAKE   HIM   LIABLE. 

§  482.  I.  Actual  and  constructive  possession.  When  a  gar- 
nishee is  summoned,  the  effect  of  the  proceeding  is  to  attach  any 
personal  property  of  the  defendant  in  his  possession,  capable  of 
being  seized  and  sold  under  execution.  And  it  is  a  general  rule 
that  the  property  must  be  in  the  actual  possession  of  the  gar- 
nishee, or  within  his  control,  so  that  he  may  be  able  to  turn  it 
out  on  execution.^     But  though  not  in  his  actual  possession,  if 


1  Andrews  v.  Ludlow,  5  Pick.  28 ; 
Burrell  v.  Letson,  1  Strobhart,  239.  Tlie 
peculiar  language  of  the  Trustee  Act  of 
Massaciiusetts — by  the  terms  of  wliich 
the  liability  of  the  garnishee  is  based  on 
his  having  "  goods,  effects,  or  credits  of 
the  principal  defendant  intrusted  or  depos- 
ited in  his  hands  or  possession  "  received 
a  construction  by  the  Supreme  Court  of 
that  State,  in  Staniels  v.  Raymond,  4 
Gushing,  314.  The  garnisliee  had  in  his 
possession,  when  summoned,  a  cow  of 
the  defendant's,  for  the  purcliasc  of  which 
he  had  been  in  treaty  with  the  defendant. 
No  bargain  had  been  completed,  and 
before  the  time  of  trying  the  cow  had 
expired,  and  before  the  garnishment,  the 
garnishee  had  notified  the  defendant  tiiat 
he  should  not  purcliase  the  cow,  and  had 
delivered  her  to  him,  but  the  defendant 
left  her  in  his  possession,  where  she  was 
at  the  time  the  garnisliee  was  summoned. 
The  court  held,  that  this  was  not  such  a 
possession  of  the  cow  as  would  render 
the  garnishee  liable,  and  said  :  "  The  cow 
had  not  been  taken  away,  and  the  ques- 
tion is,  wliether  tlie  mere  possession  of 
the  cow,  witiiout  any  claim  of  rigiit,  by 
the  supposed  trustee,  renders  him  charge- 
[400] 


able ;  and  in  the  opinion  of  the  court  it 
does  not.  It  may  well  be  doubted, 
whether  the  trustee  is  chargeable  accord- 
ing to  the  literal  construction  of  the 
statute.  The  words  'intrusted  or  de- 
posited' imply,  in  their  ordinary  signifi- 
cation, something  more  than  mere  pos- 
session ;  but  if  it  were  otherwise,  such  a 
construction  would  be  unreasonable  and 
inadmissible  ;  for  thereby  an  innkeeper 
would  be  chargeable  for  the  property  of 
a  traveller,  which  he  might  have  in  his 
possession  for  the  shortest  time ;  and  the 
Inrer  of  a  horse  for  a  ride,  might  be 
charged  as  trustee.  .  .  .  We  think  it 
never  could  have  been  the  intention  of 
the  legislature,  that  the  mere  possession 
of  i)roperty,  by  a  party  having  no  claim 
to  hold  it  against  the  owner,  should  ren- 
der him  liable  therefor  as  trustee,  and 
tliereby  to  be  subjected  to  trouble  and 
ex[)ense  in  answering  to  a  claim  in  which 
he  has  no  interest.  Such  a  construction 
of  the  statute  would  be  prejudicial  in 
very  many  cases,  and  cannot  be  ad- 
mitted ;  nor  do  we  think  that  a  literal 
construction  of  the  statute  would  render 
the  supposed  trustee  chargeable." 


CHAP.  XXI.]  WILL   CHAEGE   GAENISHEE.  §  484 

he  have  the  right  to,  and  the  power  to  take,  immediate  posses- 
sion, he  must  be  regarded  as  being  in  possession.^ 

The  proposition,  however,  that  a  garnishee  is  liable  for  personal 
property  of  the  defendant  in  his  possession,  applies  only  to  cases 
where  he  knows  that,  when  garnished,  he  had  such  property  in 
his  hands.  If  he  then  had  property  in  his  possession,  received 
from  a  third  person,  which  was  in  fact  the  defendant's,  but 
not  known  to  him  to  be  so,  and  he  parted  with  it  before  he 
became  aware  of  that  fact,  he  cannot  be  charged  in  respect 
thereof.^ 

§  483.  Constructive  possession  of  the  defendant's  property  will 
not  suffice  to  make  the  garnishee  liable.  Thus,  where  the 
garnishee  had  left  in  the  hands  of  merchants  in  a  foreign  port 
goods  of  the  defendant,  which  had  been  under  his  charge  as  mas- 
ter of  a  schooner,  it  was  held,  that  he  was  not  liable  on  account 
of  the  goods,  the  same  not  being  in  his  possession  when  he  was 
garnished,  though  he  held  the  receipt  of  the  foreign  merchants 
therefor.3  So,  where  goods  were  consigned  by  merchants  in 
Philadelphia  to  merchants  in  Boston,  and  after  the  latter  received 
the  bill  of  lading,  but  before  the  goods  arrived,  they  were 
garnished,  it  was  decided  that  they  were  not  liable,  not  having 
the  goods  in  possession  when  summoned.*  So,  where  the  gar- 
nishees stated  that  a  part  of  the  property  transferred  by  the 
defendant  to  them  consisted  of  parts  of  certain  ships,  with  their 
cargoes,  then  at  sea,  they  were  held  not  chargeable,  because  they 
had  not  actual,  but  only  constructive,  possession  of  the  jjroperty.^ 

§  484.  But,  where  the  agent  of  a  garnishee  had  collected 
money  for  the  garnishee,  in  respect  of  which  the  latter  would 
have  been  liable,  had  he  himself  received  it,  he  was  charged, 
though  at  the  time  of  the  garnishment  the  money  had  not  been 
paid  over  to  him  by  the  agent.^     So,  where  one  in  Pennsjdvania 

1  Lane  v.  Nowell,  15  Maine,  86 ;  Morse  clearly  the  point  stated  in  tlie  text,  but 

V.  Holt,  l!2  Ibid.  180.     See  §  484.  in  Andrews  i'.  Ludlow,  5  Pick.  28,  it  is 

'^  Bingham  v.  Lamping,  26  Penn.  stated  by  Wilde,  J.,  to  have  been  de- 
State,  y40.  cided  on  that  ground. 

3  Willard    v.   Sheafe,    4    Mass.    235.  ^  Andrews    v.   Ludlow,   6    Pick.    28; 

This  case  does  not,  in  itself,  appear  to  Nickerson  v.  Chase,  122  Mass.  296. 
have  been  deciik'd  on  this  ground,  but  in  ••  Ward  v.  Lamson,  6  Pick.  358.     The 

Andrews  v.  Ludlow,  5  Pick.  28,  it  is  so  question  of  actual  and  constructive  pos- 

stated  by  Wilde,  J.  session  does  not  seem  to  have  been  be- 

*  Grant  v.  Shaw,  16  Mass.  341.     The  fore  the  court  in  this  case, 
report   of    this    case    does    not   indicate 

26  [401] 


§  486  WHAT   POSSESSION  [CHAP.  XXI. 

was,  by  his  agent  in  Ohio,  in  possession  of  goods  of  the  defend- 
ant, he  was  charged  as  garnishee  of  tlie  defendant  under  an 
attachment  taken  out  in  Pennsylvania.^ 

§  485.  11.  Possession  considered  with  rt^erence  to  privity  of  con- 
tract and  of  interest  between  the  garnishee  and  the  defendant.  The 
garnishee  must  not  only  have  actual  possession  of  the  defendant's 
effects,  but  there  must  be,  except  in  cases  of  fraudulent  disposi- 
tions of  property,  privity  between  him  and  the  defendant,  both 
of  contract,  express  or  implied,  and  of  interest,  by  which  the 
defendant  would  have  a  right  of  action,  or  an  equitable  claim, 
against  the  garnishee,  to  recover  the  property  for  his  own  use, 
either  at  the  present  or  some  future  time.^  The  want  of  privity, 
either  of  contract  or  of  interest,  will  generally  prevent  the  gar- 
nishee's being  charged.  Property  may  be  in  the  garnishee's 
hands,  in  which  the  defendant  has  an  interest,  but  which  the 
garnishee  may  be  under  no  legal  obligation  to  deliver  to  him  ; 
and  as  the  plaintiff  can  exercise  no  greater  control  over  the  prop- 
erty in  such  case  than  the  defendant  could,  the  garnishee  cannot 
be  charged.  There  may,  too,  be  property  in  the  garnishee's 
hands,  the  legal  title  to  which  is  in  the  defendant,  and  for  which 
the  defendant  might  maintain  an  action  against  the  garnishee, 
and  yet  the  latter  not  be  liable  as  garnishee.  Such,  for  instance, 
as  held  in  New  Hampshire,  is  the  case  of  a  party  who  has  taken 
the  goods  of  another  by  trespass,  and  who  cannot,  in  respect 
thereof,  be  held  as  garnishee  of  the  owner,  though  the  legal  title 
is  in  the  latter,  and  he  might  maintain  an  action  for  the  trespass.'^ 
Such,  too,  is  the  case  of  one  in  whom  the  legal  title  to  goods  is 
vested,  but  who  has  no  interest  of  his  own  in  them. 

§  486.  The  doctrine  here  advanced  may  be  illustrated  by  sev- 
eral cases  which  have  arisen ;  and  it  will  be  considered,  1.  with 
reference  to  privity  of  contract  between  the  garnishee  and  the 
defendant,  and,  2.  with  reference  to  privity  of  interest  between 
them. 

1  Childs  V.  r»igljy,  24  Penn.  State,  23.  3  Despatch  Line  v.  Bellamy  Man.  Co., 

See  Glenn  v.  Boston  &  Sandwich  Glass  12  New  Hamp.  205.  See  Everett  v. 
Co.,  7  Maryland,  287.  Herrin,  48  Maine,  537. 

'^  Cushing's   Trustee  Process,  §  101 ; 
Post,  §  490;  Skowhegan  Bank  v.  Parrar, 
46  Maine,  293. 
[402] 


CHAP.  XXI.]  WILL  CHARGE   GARNISHEE.  §  487 

§  487.  1.  Privity  of  Contract.  Money  was  placed  in  the  hands 
of  certain  trustees,  to  be  by  them  appropriated,  at  their  discre- 
tion, for  the  maintenance  and  support  of  a  son  of  the  donor, 
during  his  life,  and  afterwards  to  distribute  it  among  the  other 
children  of  the  donor.  While  yet  a  portion  of  the  money  was  in 
the  hands  of  the  trustees,  they  were  summoned  as  garnishees  of 
the  son ;  and  the  court  held,  that  they  could  not  be  charged, 
because  they  were  in  no  view  indebted  to  him,  and  he  could 
maintain  no  action  for  the  sum  committed  in  trust  to  them. 
Here,  the  defendant  had  an  interest  in  the  money  in  the  gar- 
nishee's hands,  but  there  was  no  privity  of  contract.^  A.  made 
his  bond  to  B.,  conditioned  to  pay  B.  a  yearly  sum  during  the 
life  of  C,  to  be  applied  by  B.  to  the  maintenance  of  C,  his  wife 
or  family,  or  any  member  of  it,  according  to  B.'s  judgment  and 
discretion.  A.  was  summoned  as  garnishee  of  B.  and  C,  at  a 
time  when  a  portion  of  the  annuity  was  due  and  unpaid  ;  and 
the  court  held,  that  he  could  not  be  charged  as  garnishee  of 
either,  because, /rs^,  he  was  under  no  legal  obligation  to  C,  the 
cestui  que  trusty  and  C.  could  maintain  no  action  against  him  ; 
and,  second,  though  B.,  the  trustee,  might  maintain  an  action 
against  him  for  the  money,  yet  B,  was  to  receive  the  money,  not 
for  his  own  use,  but  to  be  applied  to  the  support  of  C.  In  other 
words,  between  A.  and  C.  there  was  no  privity  of  contract,  and 
B.  had  no  interest  in  the  money .^  A  sheriff  attached  goods  of 
the  defendant's,  and  employed  an  auctioneer  to  sell  them  at  pub- 
lic auction,  and  the  auctioneer,  while  the  proceeds  of  the  sale  were 
in  his  hands,  was  summoned  as  garnishee  of  the  defendant ;  and 
it  was  held,  that  he  was  not  liable,  as  there  was  no  privity  be- 
tween him  and  the  defendant ;  and  that  he  should  account  to  the 
officer  who  employed  him.^  A.  received  a  certain  sum  of  money 
from  B.,  for  tlie  purpose  of  paying  off  a  mortgage  resting  upon 
the  land  of  C.  A.  was  summoned  as  garnishee  of  C,  and  was 
discharged,  because  tlie  money  was  not  C.'s,  and  because  there 
was  no  privity  between  A.  and  C*  So,  where  A.  delivers  to  his 
agent  B.  money  to  be  paid  over  to  C.  Until  C.  acquires  a  knowl- 
edge of  the  delivery  to  B.  for  that  purpose,  and  B.  has  agreed 
with  him  to  deliver  it  to  him,  there  is  no  privity  of  contract  be- 

1  White  V.  Jenkins,  16  Mass.  62.  3  Penniman  v.  Ruggles,  6  New  Ilanip. 

2  Brigden  ;;.  Gill,  16  Mass.  522.     See     166. 

Hinckley  v.   Williams,   1    Cusliing,  4'JO;  *  Wright  y.  Foord,  5  New  Ilanip.  178. 

Mcllvaine  v.  Lauciisler,  42  Missouri,  'J6. 

[403] 


§488 


"WHAT  POSSESSION 


[chap.  XXI. 


tween  them,  and  B.  cannot  be  charged  as  garnishee  of  C.^  So, 
where  a  son  was  permitted  to  build  a  house  on  his  father's  hmd, 
under  the  expectation  that  the  land  would,  by  devise,  come  to 
him  at  the  death  of  his  father,  and  the  father  was  summoned  as 
garnishee  of  tlie  son  ;  it  was  held,  that  he  could  not  be  charged, 
because  there  was  no  contract,  express  or  implied,  that  he  should 
be  accountable  to  the  son  for  the  value  of  the  house.^  So,  where 
certain  policies  of  insurance  were  assigned  by  A.  to  B.,  and  the 
assignment  contained  a  clause  to  the  effect  that  any  surplus  of 
the  proceeds  of  the  policies  should  be  paid  to  C,  who  was  not  a 
party  to  the  assignment ;  it  was  held,  that  B.  could  not  be  charged 
as  garnishee  of  C,  because  there  was  no  privit}'^  of  contract  be- 
tween B.  and  C.^ 


§  488.  A  garnishee  answered  that  he  had  in  his  hands  a  sum 
of  money  belonging  to  A.,  and  that  he  had  received  notice  of  an 
assignment  of  the  money  by  A.  to  the  defendant ;  but  it  did  not 
appear  that  the  garnishee  had  ever  promised  the  defendant  to 
pay  it  to  him ;  and  he  was  held  not  to  be  chargeable,  because, 
though  an  action  for  the  money  might  be  maintained  against  him 
in  the  name  of  A.,  for  the  defendant's  use,  yet  there  was  no 
privity  of  contract  between  him  and  the  defendant,  which  would 
make  him  liable.* 


1  Post,  §  514;  Neuer  v.  O'Fallon,  18 
Missouri,  277.  See  Briggs  v.  Block, 
Ibid.  281 ;  Barnard  v.  Graves,  16  rick. 
41 ;  Huntley  v.  Stone,  4  Wisconsin,  91 ; 
Eichelberger  v.  Murdock,  10  Maryland, 
373 ;  Towne  v.  Griffltli,  17  New  Hamp. 
165;  Burnliam  v.  Beal,  14  Allen,  217; 
Kelly  V.  Roberts,  40  New  York,  432; 
Kelly  V.  Babcock,  49  Ibid.  318. 

2  Wells  V.  Banister,  4  Mass.  514 ; 
Bean  v.  Bean,  33  New  Ilamp.  279.  But 
where  tlie  property  in  the  garnishee's 
hands  is  in  the  name  of  one  as  a  trustee, 
holding  it  merely  for  the  use  of  the  de- 
fendant, this  presents  no  obstacle  to 
holding  it  by  garnisliment,  because  the 
beneficial  interest  is  in  the  defendant, 
accompanied  witli  a  present  right  of  pos- 
session and  enjoyment.  Kaynes  v.  Lowell 
I.  B.  Society,  4  ('ushing,  343. 

3  Field  V.  Crawford,  6  Gray,  116. 

*  Folsom  V.  Haskell,  11  Gushing,  470. 
By  Shaw,  C.  J.  :  "The  question  in  this 
case  is,  whether  a  party  to  whom  a  chose 
[4U4] 


in  action  has  been  assigned,  so  that, 
prima  facie,  he  could  maintain  an  action 
thereon  in  the  name  of  tlie  assignor,  is 
put  in  such  a  relation  to  the  debtor  tliat 
the  latter  can  be  suumioned  as  his 
trustee.  The  tendency  of  our  laws  is 
to  exempt  the  person,  but  the  more 
effectually  to  charge  the  property  of  the 
debtor;  yet  as  this  is  the  first  attempt  to 
charge  a  trustee  under  such  circum- 
stances, althougii  our  statutes  regulating 
the  trustee  process  have  been  in  force 
for  seventy  years,  it  becomes  tlie  court 
to  look  carefully  at  the  case. 

"  It  is  conceded  that  an  action  would 
lie  against  the  alleged  trustee  for  this 
money  in  the  name  of  the  assignor.  We 
are  of  opinion  that  this  is  not  enough ; 
but  that  in  order  to  charge  the  trustee 
lie  must  be  directly  liable  to  the  defend- 
ant. The  assignee  of  a  chuse  in  action  is 
made  the  attorney  of  tlie  creditor  to  col- 
lect the  debt  and  hold  the  proceeds  to 
his  own  use.     The  debtor  lias  nothing  to 


CHAP.  XXI.]  WILL   CHARGE   GARNISHEE.  §  489 

§  489.  2.  Privity  of  Interest.  The  next  class  of  cases,  illus- 
trative of  the  general  doctrine  advanced,  is,  where  there  is  a 
privity  of  contract  between  the  garnishee  and  the  defendant,  but 
no  privity  of  interest.  In  such  cases,  though  the  garnishee  have 
in  his  possession  property  or  money  which  he  is  bound  by  con- 
tract to  deliver  or  pay  to  the  defendant,  and  for  which,  therefore, 
the  defendant  might  maintain  an  action  against  him,  yet  he  can- 
not be  charged  as  garnishee  in  respect  thereof,  because  the  de- 
fendant himself  has  no  interest  therein.  Such  are  the  cases 
where  the  effects  in  the  garnishee's  hands  belong  to  the  defend- 
ant as  a  mere  trustee  or  agent  for  others.  There,  it  is  not  only 
sound  doctrine  technically,  but  in  entire  accordance  with  every 
principle  of  justice,  that  though  the  legal  title  to  the  effects  in 
the  garnishee's  possession  be  in  the  defendant,  yet  as  they  do  not 
in  fact  belong  to  him,  but  to  others,  they  shall  not  be  taken  to 
discharge  his  debts.^ 

Therefore,  where  it  appeared  from  the  answer  of  the  garnishee, 
that  he  had  executed  a  bond  to  the  defendant,  the  condition  of 
which  w^as,  that  he  should  pay  the  defendant  a  certain  sura,  part 
of  which  only  was  the  defendant's  property,  and  the  rest  for  the 
benefit  of  other  persons  ;  the  court  held  that  the  garnishee 
should  not  be  charged  for  that  part  of  the  bond  which  was  due 
to  the  other  persons,  and,  in  delivering  their  opinion,  say :  "  The 
bond  is  made  to  the  defendant,  and  he  had  a  right  to  demand 
payment  of  it,  and  to  sue  it ;  but  still,  as  it  appears  that  in  taking 
the  bond  he  acted  as  the  trustee  of  others,  it  being  given  for  the 
consideration  of  the  purchase  of  an  estate,  the  life  interest  in 
which  was  in  his  mother,  and  the  reversionary  interest  in  his 
brothers  and  sisters  and  their  children,  the  money  secured  by  the 

do  with  the  relation  between  the  assignor  creditors.     But  there  is  no  relation,  no 

and  his  assignee.     How  can  he  know  or  privity,  between  him   and   the  assignee 

try,  in  this  form  of  proceeding,  the  ques-  of   his     creditor.      If    the     trustee    had 

tion  whether   the   assignment  was   duly  promised  to  pay  the  debt  to  the  assignee, 

executed,  or  whether  if  executed  it  has  the  case  would  be  different,  for  tiie  latter 

been  discharged  or  revoked,  or  whether  would  then  be  the  legal  creditor." 

other  persons   have   obtained   rights   by  i  Simpson   v.   Harry,  1   Devereux   & 

other    valid    assignments'*     The    whole  Battle,  202.     See   Miller   v.  Richardson, 

theory  of  the  trustee  process  is,  that  the  1  Missouri,  310  ;  Jones  v.  iEtna  Ins.  Co., 

trustee  is  a  stranger  to  the  suit  and  his  14  Conn.  501  ;  Pickering  v.  Wendell,  20 

liability  is  to  bo  decided  on  his  own  an-  New  Hamp.  222 ;  Chapin  v.  Conn.  R.  R. 

swers,  and  on  facts  within  his  own  knowl-  Co.,  16  Gray,  69;  Halpin    v.  Barringer, 

edge ;  and  the  reason  is,  that  he  knows  26  Louisiana  Annual,  170. 
the   relation   between    him.self    and    his 

[405] 


§  489  WHAT   POSSESSION  [CHAP.  XXI. 

bond  ought  in  equity  to  be  distributed  among  the  devisees  of  the 
estate  in  the  proportions  in  which  they  held  the  estate."  ^     So,  in 
the  case  previously  referred  to,  where  A.  had  given  a  bond  to 
B.,  by  whicli  he  bound  himself  to  pay  B.  a  certain  yearly  sum, 
to  be  appropriated  to  the  support  of  C,  and  A.  was  summoned 
as  garnishee  of  B.  ;  he  could  not  be  charged,  because  the  money 
due  on  the  bond  was  not  his  own,  but  was  to  be  appropriated  for 
the  use  of  others.-     So,  where  a  factor  del  credere  sold  goods  of 
his  principal,  without  the  purchaser  knowing  at  the  time  that  he 
was  a  factor,  but  was  afterwards  notified  by  the  owner  of  the 
goods  that  they  were  his;  it  was  decided  that  the  debt  due   for 
the  goods  belonged  to,  and  was  claimable  by,  the  principal,  and 
that  the  purchaser  could  not  be  held  as  garnishee  of  the  factor, 
for  any  thing  beyond  the  amount  of  the  factor's  lien  for  his  com- 
mission.^    So,  where  goods  were  shipped  on  a  vessel,  and  freight 
was  earned  for  the  transportation  thereof,  and  the  shipper  was  sum- 
moned as  garnishee  of  the  master  of  the  vessel,  and  it  appeared 
that  the  owners  of  the  vessel  were  not  indebted  to  the  master ; 
the  garnishee  was  held  not  chargeable,  and  the  court  based  its 
decision  on  the  following  grounds:  "The  agreement  of  the  mas- 
ter operated  to  make  or  create  a  contract  between  the  owners 
and  the  freighters,  as  well  as  between  the  master  and  the  freight- 
ers.    The  master  is  the  mere  agent  of  the  owners,  removable  at 
pleasure.      He  contracts  on  the  personal  responsibility  of  the 
owners,  and  has   no   remedy  for  his  wages,   as   mariners  have, 
against  the  ship.     But,  inasmuch  as  he  may  hypothecate  the  ship, 
and  the  freight,  and  the  cargo,  for  necessaries  in  a  foreign  port, 
it  has  been  held  in  Massachusetts  and  New  York,  contrary  to  the 
English  decisions,  that  he  has  a  lien  upon  the  freight  for  neces- 
sary disbursements  and  expenses.     And  the  able  judge  of  the 
United  States  Court  of  this  district,  has  extended  the  claim  also 
to  his  wages.     But  with  the  question,  for  what  matters  or  claims 
the  master  may  have  a  lien  on  the  freight,  we  have,  in  the  case  at 
bar,  no  concern  ;  for  the  master  has  been  fully  paid  by  the  own- 
ers.    They  may,   therefore,  compel  the  payment  of  freight  to 
themselves.     The  master,  under  these  circumstances,  has  no  more 
right  to  the  freight-money  than  he  has  to  the  ship.     Both  belong 
to  the  owners."  * 

1  Willard  v.  Sturtevant,  7  Pick.  194.  ^  Titcomb  v.  Seaver,  4  Maine,  542. 

2  Brigflen  v.  Gill,  16  Mass.  522.  *  Ricliardson  v.  Wiiiting,  18  Pick.  530. 

[406] 


CHAP.  XXI.]  WILL   CHARGE   GARNISHEE.  §  490 

§  490.  Privity  of  Contract  and  of  Interest  combined.  We  see 
from  the  foregoing  citations  the  force  and  scope  of  the  doctrine 
that  privity  of  contract  and  of  interest  must  in  general  combine 
in  order  to  charge  the  garnishee  in  respect  of  property  of  the  de- 
fendant ;  and,  wherever  such  combination  exists,  there  is  a  right 
of  action  in  the  defendant  against  the  garnishee,  either  at  the 
present  or  a  future  time,  Tlie  presentation  of  a  few  cases  illus- 
trative of  this  point  will  close  the  consideration  of  this  branch  of 
the  subject. 

Where  a  fund  is  in  the  hands  of  a  trustee  on  a  trust  which  the 
cestui  que  trust  can  at  any  moment  revoke  by  a  demand  of  the 
money,  and  on  a  refusal  of  payment  can  immediately  maintain 
an  action  in  his  own  name  to  recover  it,  the  trustee  can  be  held 
as  garnishee  of  the  cestui  que  trust  on  account  of  the  fund.^  So, 
where  a  fund  was  held  by  a  trustee  for  four  cestuis  que  trust,,  and 
their  proportional  shares  have  been  adjusted  on  a  bill  in  equity 
brought  against  him  by  three  of  them,  he  is  chargeable  as  gar- 
nishee for  the  share  of  the  fourth  cestui  que  trustJ^  So,  where 
property  is  placed  in  the  hands  of  one,  to  be  sold,  and  the  pro- 
ceeds applied  to  a  particular  purpose,  and  upon  the  sale  there 
appears  a  surplus  of  money  over  what  is  necessary  for  the  given 
purpose,  he  is  chargeable  as  garnishee  of  the  person  to  whom  the 
property  belonged.-^  So,  one  holding  real  estate  of  the  defendant 
in  his  own  name,  but  in  trust  for  the  defendant,  and  accountable 
to  the  defendant  for  the  rents  and  profits  thereof,  or  for  the  pro- 
ceeds of  the  same,  if  sold,  is  liable  as  garnishee  of  the  defendant, 
to  the  amount  of  tlie  rents  and  profits  in  his  hands.^  So,  wliere 
a  sum  of  money  was  bequeathed  to  trustees,  who  were  required 
to  pay  annually  the  interest  thereon  to  A. ;  it  was  held,  that  the 
trustees  might  be  charged  as  garnishees  of  A.  in  respect  of  the 
interest.^  So,  where  the  principal  in  a  bond  to  the  United  States, 
having  become  a  defaulter  and  left  the  country,  his  surety  paid, 
without  suit,  $1,000,  and  then  arrested  the  principal  in  Matanzas, 
in  a  suit  on  a  bond  of  indemnity,  and  upon  receiving  |2,000  gave 
this  bond  up  to  the  principal.     The  bond  to  the  United  States 

1  Estabrook  v.  Earle,  97  Mass.  .302.  9  Iowa,  407  ;  McLaughlin  v.  Svvann,   18 

2  Haskell  v.  Haskell,  8  .Metcalf,  545.         Howard,  Sup.  Ct.  217. 

8  Pierson  v.  Welier,  3  Mass.  5G4  ;  New  ^  Russell  v.  Lewis,  15  Mass.  127. 

En{?Iand  Mar.   Ins.   Co.  v.  Chamller,  16  ^  Matliews  y.  Park,  1  Pittsburgh,  22 ; 

Ibid.  275;  Webb  v.  Peale,  7  Piek.  247  ;     Park  v.  Mathews,  36  Penn.  State,  28 ;  2 
Kiciiards  v.  Allen,  8  Ibid.  405;  Hearu  v.     Grant,  13G. 
Crutcher,  4  Yerger,  461 ;  Cook  v.  Dillon, 

[407] 


§  490  WHAT   POSSESSION  [CHAP.  XXI. 

was  afterwards  put  in  suit,  and  the  judgment  recovered  on  it  was 
satisfied  by  a  levy  upon  land  supposed  to  belong  to  the  principal, 
which  the  United  States  afterwards  sold,  and  the  sum  paid  by  the 
surety  was  restored  to  him.    After  this  the  surety  was  summoned 
as  garnishee  of  the  principal,  and  it  was  held,  that  the  principal 
was   entitled   to   recover   back   the   money   paid   in    Matanzas, 
and  that  the  surety  was  therefore  liable  as  his  garnishee.^     So, 
where  property  claimed  by  A.,  being  libelled  in  an  admiralty 
court  as  a  prize,  was  delivered  to  B.,  to  indemnify  him  for  bonds 
given  by  him  in  that  court  in  behalf  of  A.,  and  after  a  decree  of 
restitution  by  which  the  bonds  so  given  were  discharged,  B.  was 
summoned  as  garnishee  of  A.,  he  was  charged  as  such,  because 
A.  had  a  right  of  action  against  him  to  recover  the  property  so 
delivered.2     So,  where  a  garnishee  answered  that,  as  guardian  of 
an  infant,  he  had  sold  land  to  the  defendant,  under  a  license  of 
court,  but  that  he  had  not  given  the  bond  nor  taken  the  oath  re- 
quired by  law  previous  to  such  sale  ;  that  part  of  the  purchase- 
money  had  been  paid,  and  a  deed  had  been  executed  and  placed 
in  the  hands  of  a  third  person,  to  be  delivered  when  the  residue 
should  be  paid ;  and  that  the  defendant,  soon  after  the  sale,  en- 
tered and  was  still  in  possession  of  the  land ;  it  was  held,  that, 
because  there  was  neither  oath  nor  bond  of  the  guardian,  the 
sale  was  invalid,  and  the  purchaser,  who  was  the  defendant  in 
the  attachment,  had  a  right  of  action  against  the^  guardian  to  re- 
cover back  what  he  had  paid  of  the  purchase-money,  and  there- 
fore the  guardian  ^vas  liable  as  garnishee.^     So,  A.  was  building 
a  vessel,  and  agreed  with  B.,  C,  and  D.,  that  they  should  own 
three-sixteenths  of  the  vessel,  and  should  be  allowed  the  amount 
of  all  reasonable  bills  which  they  might  produce  against  the 
vessel,  for  all  such  materials  as  they  should  supply,  until  she  was 
fit  for  sea ;  and  then  that  he  would   convey  to  them  three-six- 
teenths of  the  vessel.     B.  supplied  materials  to  such  an  amount 
as  might  entitle  him  to  be  an  owner  of  one-sixteenth  part  of  the 
vessel,  but  C.  and  D.  did  not  furnish  their  proportions.    The  ves- 
sel was  finished,  and  was  chartered  by  A.,  on  his  own  account, 
to  another  party.     A.  was  summoned  as  garnishee  of  B. ;  and  it 
was  decided,  that,  as  B.  was  not  entitled  to  any  part  of  the  ves- 
sel, and  A.  was  accountable  to  him  for  the  amount  of  supplies  he 

1  Watkins  v.  Otis,  2  Pick.  88.  3  Williams  v.  Reed,  5  Pick.  480. 

2  Thompson  v.  Stewart,  3  Conn.  171. 

[408] 


CHAP.  XXI.]  WILL   CHARGE   GAENISHEE.  §  491 

furnished,  he  was  chargeable  as  garnishee  to  that  amount.^  So, 
where  one  contracts  to  purchase  goods,  on  certain  conditions,  to 
be  by  him  performed,  and  receives  the  goods  into  his  possession, 
but  fails  to  perform  the  conditions,  the  vendor  of  the  goods  has 
a  right  of  action  to  recover  the  goods,  and  the  vendee  may  there- 
fore be  charged  as  his  garnishee  in  respect  thereof.^  So,  one 
who  contracts  to  sell  personal  property,  in  his  possession,  but  of 
which  he  is  not  the  owner,  to  be  delivered  at  a  future  day,  and 
receives  the  purchase-money,  but  does  not  deliver  the  property, 
by  reason  of  its  having  been  reclaimed  by  the  real  owner,  may 
be  held  as  garnishee  of  the  vendee  for  the  amount  of  the  pur- 
chase-money.^ 

§  491.  But  it  has  been  held,  that  it  is  not  always  necessary  that 
privity  of  contract  and  of  interest  should  combine  to  render  the 
garnishee  liable.  Where  there  is  privity  of  contract,  but  not  of 
interest,  but  the  position  of  affairs  between  the  garnishee  and  the 
defendant  is  such  that,  to  exempt  the  garnishee  from  liability, 
would  tend  to  an  evasion  of  the  force  and  effect  of  the  law,  and 
to  open  the  door  for  fraud,  the  garnishee  will  be  charged,  though 
the  privity  of  interest  do  not  exist.  This  was  held  in  a  case  in 
Pennsylvania,  where  in  an  attachment  against  A.,  the  Bank  of 
the  United  States  was  summoned  as  garnishee ;  and  it  appeared 
that  after  the  garnishment  (an  attachment  in  Pennsylvania  having 
the  effect  of  holding  effects  coming  into  the  garnishee's  hands 
after  he  is  garnished),  the  defendant  deposited  in  the  bank  sun- 
dry sums  of  money,  and  also  procured  the  bank  to  purchase  or 
discount  drafts  drawn  by  him  in  his  own  name,  the  proceeds  of 
which  were  passed  to  his  credit.  The  moneys  thus  passed  to  the 
defendant's  credit  were  drawn  out  on  his  checks.  It  appeared 
that,  though  the  accounts  were  kept  with  the  defendant  in  his 
own  name,  he  was  in  fact  the  agent  of  others  in  all  the  transac- 
tions, and  the  jury  found  that  all  the  funds  were  deposited  and 
drawn  out  by  him  as  agent  for  others.  Notwithstanding  the 
jury  thus  found,  the  court,  on  grounds  of  public  policy,  and  for 
the  prevention  of  fraud,  held  the  bank  liable  as  garnishee  of  A.* 

1  Davis  V.  Marston,  5  Mass.  199.  thus  expressed  :  "  The  attachment  is  in 

2  Emery  v.  Davis,  17  Maine,  252.  rem,  for  the   purpose  of  compelling  the 

3  Edson  V.  Trask,  22  Vermont,  18.  appearance  of  the  defendant ;  and  if  he, 
*  Jackson   v.   Bank   U.   S.,    10   Tenn.  instead  of  drawing  this  money  out  of  the 

State,  61.     The  views  of  the  court  were     bank,  had  appeared  and  cntereil  bail  to 

[409] 


§  401  a 


WHAT   POSSESSION 


[chap.  XXI. 


§  401  a.  But  where  money  is  deposited  in  a  bank  by  one  as 
agent,  and  tlie  account  is  understood  both  by  the  depositor  and 


tlie  action,  tlie  money  would  liave  Leen 
free,  and  tlie  bank  iniij;ht  then  liave  paid 
it  to  him.  Hut  the  garnishee  chose  to  he 
the  sole  judge  and  umpire,  and  to  pay  out 
the  money  to  him  on  his  checks,  tlius  in 
fact  recofiuizintr  his  rijifht  to  the  posses- 
sion and  control  of  the  money,  and  yet 
taking  the  hazard  of  defeating  the  object 
of  the  attachment.  The  first  question 
that  occurs  is  this  :  Could  the  bank,  if  the 
attachment  had  not  been  served,  have 
resisted  the  claim  of  the  defendant  to  the 
money  he  had  deposited  with  them? 
They  received  it  and  the  bills  as  his, 
entered  them  on  their  books  as  his,  and 
were  bound,  in  the  absence  of  any  attach- 
ment, to  have  paid  the  funds  to  him. 
How,  then,  were  they  placed  in  any  bet- 
ter situation  by  the  service  of  the  attach- 
ment ?  The  attaching  creditor  stands  in 
the  place  of  the  defendant.  If  the  bank 
could  not  allege  as  against  the  defendant, 
that  the  funds  were  not  his,  neither  can 
they  allege  against  the  attaching  creditor 
that  they  are  not  the  defendant's,  and  yet 
turn  round  and  pay  the  money  to  the  de- 
fendant, to  enable  him  to  defeat  his  cred- 
itor. In  Sergeant  on  Attachment,  p.  94, 
it  is  said  that  the  garnishee  may  plead 
every  thing  to  the  scire  facias  which  he 
could  plead  against  the  defendant;  and  if 
the  bank  could  have  pleaded  against  the 
defendant  that  the  money  and  the  prod- 
ucts of  the  bills  were  not  his,  why  did 
they  pay  them  to  him  after  being  warned 
by  attachment?  The  law  countenances 
not  those  operations  by  which  its  legit- 
imate force  and  effect  may  be  evaded. 
Thus,  in  the  case  of  Silverwood  v.  Bellas, 
8  Watts,  420,  it  was  resolved  that  Silver- 
wood,  the  garnishee,  who  had  received 
money  in  trust  to  deliver  it  over  to  the 
defendant,  was  liable  because  he  did  de- 
liver it  over.  Here  it  cannot  be  gainsaid 
that  the  bank  was  bound  to  deliver  over 
the  money  to  the  defendant  in  the  absence 
of  the  attachment. 

"  The  ownership  of  the  defendant  is 
evidenced  and  maintained  by  the  custom- 
ary evidence  of  right,  that  is,  the  deposit 
in  the  bank  in  his  own  name,  the  books 
of  tlie  bank,  the  drawing  of  bills  and 
checks  in  his  own  name.     Under  these 

[410] 


circumstances  it  is  against  public  policy 
that  the  bank  should  be  jiermitted  to 
allege  that  the  books  were  false  for  the 
purpose  of  defeating  the  creditor,  and  yet 
true  for  the  purpose  of  paying  over  the 
funds  to  the  defendant.  .  .  .  We  fear  it 
would  open  too  wide  a  door  for  the  inflic- 
tion of  fraud,  if  such  practices  were  tol- 
erated. An  individual,  made  out  to  be 
insolvent,  may  have  $100,000,  nay,  twice 
that  amount,  in  a  bank,  entered  on  its 
books  in  his  own  name,  his  checks  ac- 
cepted and  paid.  What  amount  of  credit 
may  he  not  obtain  upon  this  lure  held  out 
to  the  community  ?  If  the  cashier,  and 
the  party  claiming  the  money,  or  any 
other  persons,  are  permitted  to  prove  that 
the  entries  are  untrue,  that  the  depositor 
has  not  a  cent  in  the  bank,  the  injury 
may  be  deep  and  grievous  to  credit,  and 
the  source  of  severe  loss  to  those  who  have 
put  faith  in  the  integrity  and  uprightness 
of  banking  institutions.  .  .  .  The  gar- 
nishee after  having  paid  the  money  to  the 
defendant,  and  by  its  own  books,  papers, 
and  records,  given  the  evidence  that  it 
was  his,  shall  not  be  permitted  to  allege 
the  contrary  for  the  purpose  of  protecting 
itself  in  a  wrongful  act.  The  duty  of  the 
garnishee  was,  having  received  the  money 
and  bills  as  the  money  and  bills  of  the 
defendant  himself,  to  have  retained  tliera 
until  liberated  by  due  course  of  law.  .  .  . 
Even  suppose  that  the  defendant  got  this 
money  from  many  persons,  and  used 
it  as  his  own,  he  became  the  debtor 
of  those  persons,  and  they  lost  their  grip 
on  the  fund.  And  by  mingling  this  fund 
with  the  products  of  the  bills,  domestic 
and  foreign,  and  using  the  whole  as  his 
own,  ad  lihitum,  and  depositing  it  as  such 
in  the  bank,  this  deposit  in  the  bank,  so 
made  and  evidenced,  created  a  debt  or 
duty  from  the  bank  to  the  defendant,  and 
not  any  specific  or  distinct  debt  or  duty 
to  the  parties  whose  money  it  is  alleged 
it  in  fact  was.  The  debt  or  duty  was  to 
the  defendant  in  mass  ;  and  by  paying  it 
to  him  in  the  face  of  an  attachment  and 
garnishment,  the  bank  became  liable  to 
the  plaintiff  in  attachment."  See  Pax- 
son  V.  Sanderson,  2  Philadelphia,  308.  In 
Bank  of  Northern  Liberties  v.  Jones,  42 


CHAP.  XXI.]  WILL   CHARGE   GARNISHEE.  §  491  a 

the  bank  to  be  an  agency  account,  containing  only  the  moneys  of 
other  persons  for  whom  he  was  agent,  and  no  moneys  of  his  own, 
it  can  no  more  be  subjected  by  garnishment  to  the  payment  of 
the  agent's  debt,  than  any  other  money  of  his  principals  could 
be  ;  for  though  there  is  privity  of  contract  between  the  bank  and 
the  defendant,  there  is  no  privity  of  interest.^  And  in  such  case 
the  account  itself  is  notice  to  the  bank  that  the  money  is  not  the 
defendant's,  and  the  latter  is  a  competent  witness  to  prove  that 
it  did  not  belong  to  him,  but  to  others.^  And  where  a  deposit 
was  made  in  the  agent's  name,  without  designation  of  his  repre- 
sentative character,  but  the  principal,  after  the  garnishment  of 
the  bank,  gave  notice  to  it  that  the  money  was  his,  and  not  the 
agent's,  it  was  held  not  to  be  attachable  for  the  debt  of  the  agent.'^ 
But  if  the  party  whose  money  is  deposited  in  a  bank  in  the 
name  of  another  as  his  trustee,  knows  of  the  garnishment  of  a 
bank  in  a  suit  against  the  trustee  for  his  own  debt,  and  takes  no 
step  to  assert  his  right  to  the  money ;  and  the  bank  is  charged  as 
garnishee,  and  pays  the  amount  for  which  it  is  charged  ;  the  cestui 
que  trust  cannot  maintain  an  action  against  the  bank  for  the 
money,  but  must  seek  his  remedy  for  the  loss  against  the  trustee  ; 
even  though  the  bank  was  informed  by  the  trustee  when  the  de- 
posit was  made,  that  the  money  belonged  to  the  cestui  que  trusts 

Penn.  State,  536,  the  court  said :    "  Not-     42  Penn.   State,  536 ;  Jones  v.  Bank  of 
withstanding    tlie    disapprobation    of   a     Northern  Liberties,  44  Ibid.  253. 
learned  judge   [in  Paxson  v.  Sanderson]  ^  Jones  v.  Bank  of  Northern  Liberties, 

we  hold  Jackson  v.  Bank  of  the  United     44  Penn.  State,  253;  McCormac  v.  Han- 
States  to  be  good  law,  and  it  is  not  our     cock,  2  Ibid.  310. 

intention  to  disturb  it."  ^  Farmers  &  Mechanics'  Nat.  Bank  v. 

1  Bank  of  Northern  Liberties  v.  Jones,     King,  57  Penn.  State,  202. 

4  Randall  v.  Way,  111  Mass.  506. 
[411] 


S  -493  CAPACITY  IN  WHICH  GARNISHEE  [CHAP.  XXII. 


I 


CHAPTER     XXII. 

THE   garnishee's   LIABILITY,   AS   AFFECTED    BY   THE   CAPACITY 
IN    WHICH   HE   HOLDS   THE   DEFENDANT'S   PROPERTY. 

§  492.  The  frequent  occasions  when  money  or  other  property 
is  in  the  hands  of  officers  of  the  Law,  and  of  persons  acting  under 
legal  authority,  would  naturally  give  rise  to  efforts  to  reach  it  by 
attachment  against  the  individuals  claiming  it,  or  to  whom  it 
might  be  supposed  to  belong;  and  such  efforts  have  been  made, 
in  reference  to  almost  all  descriptions  of  persons  holding  property 
or  money  under  official  or  legal  authority.  Administrators,  ex- 
ecutors, and  guardians,  ministerial,  judicial,  and  disbursing 
officers,  and  municipal  corporations,  have  all,  at  times,  been  sub- 
jected to  garnishment,  and  numerous  adjudications  as  to  their 
liability  have  been  the  result. 

§  493.  In  Massachusetts,  at  an  early  day,  the  principle  was  es- 
tablished, that  a  public  officer  who  has  money  in  his  hands,  to 
satisfy  a  demand  which  one  has  upon  him  merely  as  a  public  offi- 
cer, cannot,  for  this  cause,  be  adjudged  a  garnishee.  The  case 
was  that  of  a  county  treasurer,  who  disclosed  in  his  answer  that 
he  had  a  certain  sum  of  money  in  his  possession,  officially,  which 
was  due  to  the  defendant  for  services  as  a  juror,  and  which  he 
was  by  law  bound  to  pay  to  the  defendant.  The  court  decided 
against  the  garnishment  on  two  grounds;  one,  having  relation  to 
the  peculiar  statute  of  the  State,  the  other  as  stated  above  ;  but 
it  is  evident  that,  had  the  former  ground  not  existed,  the  latter 
would  have  been  considered  sufficient.^  The  same  principle  was 
recognized  in  Connecticut.  There  the  State's  attorney  com- 
menced a  suit  in  the  name  of  the  county  treasurer,  on  a  forfeited 
bail-bond,  taken  in  a  criminal  proceeding ;  and  during  the 
pendency  of  the  suit,  the  legislature,  on  the  application  of  tlie 

1  Chealy  v.  Brewer,  7  Mass.  259.     See  Bulkley  v.  Eckert,  3  Penn.  State,   368 ; 
Clark  V.  Clark,  62  Maine,  255. 
[412] 


CHAP.  XXIL]  holds   DEFENDANT'S   PKOPERTY.  §  496 

person  suffering  by  the  offence  complained  of,  directed  the  money 
which  should  be  recovered  on  such  bond  to  be  paid  over  to  him. 
The  attorney  afterwards  received  the  money  due  on  the  bond ; 
and  while  it  was  in  his  hands,  before  any  demand  upon  him,  a 
creditor  of  the  person  to  whom  the  legislature  had  directed  the 
money  to  be  paid  caused  the  attorney  to  be  garnished.  It  was 
held,  that  the  attorney  having  received  and  held  the  money  in 
his  official  capacity,  as  agent  of  the  public,  the  garnishment  was 
not  sustainable.-^ 

§  494.  The  Supreme  Court  of  Massachusetts  took  a  step  fur- 
ther, and  announced  the  broader  principle,  that  no  person  deriv- 
ing his  authority  from  the  law,  and  obliged  to  execute  it 
according  to  the  rules  of  law,  can  be  chaiged  as  garnishee  in 
respect  of  any  money  or  property  held  by  him  in  virtue  of  that 
authority.2  This  decision  was  elicited  by  the  garnishment  of  an 
administrator,  and  was  based  upon  the  principle  stated,  without 
reference  to  the  statute  under  which  the  process  issued.  But 
this  immunity  extends  only  to  the  person  himself,  thus  holding 
money  or  property  in  virtue  of  such  authority.  Therefore,  one 
who  had  collected  for  A.,  executor  of  a  deceased  person,  the 
amount  of  a  promissory  note  made  payable  to  A.,  as  executor, 
was  charged  as  garnishee  in  a  suit  against  A.  in  his  private  ca- 
pacity .^  The  Supreme  Court  of  Illinois,  in  a  case  of  garnishment 
of  a  treasurer  of  a  school  district,  on  account  of  money  due  to  a 
teacher,  stated  the  rule  to  be,  that  a  person  deriving  his  authority 
from  the  law  to  receive  and  hold  money  or  property,  cannot  be 
garnished  for  the  same  when  held  by  him  under  such  authority.* 
And  so,  where  the  school  directors  were  garnished.^ 

§  495.  Having  stated  the  general  rule,  we  proceed  to  examine 
its  application  to  the  various  descriptions  of  persons  holding 
money  or  property  in  an  official  or  legal  capacity. 

§  496.  Administrators.  In  the  case  just  cited,  tlie  garnishee  an- 
swered that  he  had  no  goods,  effects,  or  credits  of  the  defendant 

1  Stillman  v.  Isham,  11  Conn.  124.  3  Coburn  v.  Ansart,  3  Mass.  319. 

2  Brooks  V.  Cook,  8  Mass.  246.  See  <  Millison  v.  Fisk,  43  Illinois,  112. 
Colby  V.  Coates,  6  Cushiiig,  558;  Thayer  »  Bivens  v.  Harper,  59  Illinois,  21. 
V.  Tyler,  5  Allen,  94;  Ladd  v.  Gale,  57 

New  llanip.  210. 

[413] 


§  496  CAPACITY   IN   WHICH   GARNISHEE       [CHAP.  XXII. 

in  his  possession,  except  as  he  was  administrator  of  P.  B., 
deceased;  that  previous  to  the  death  of  the  said  P.  B.,  the  de- 
fendant had  commenced  a  suit  against  P.  B.,  to  recover  the  value 
of  certain  hides,  which  suit  was  pending  at  the  time  of  the  gar- 
nishee's answer.  The  court,  without  adverting  to  the  facts  of 
the  case,  or,  as  before  stated,  to  the  terms  of  the  statute,  laid 
down  the  comprehensive  rule  above  indicated,  merely  adding, 
"  We  have  determined  this  in  the  case  of  public  officers,  and  the 
reason  of  those  decisions  applies  with  equal  force  to  the  case  of 
an  administrator."  ^ 

The  Supreme  Court  of  Maine  recognized  and  enforced  the 
same  principle,  in  a  case  where  the  intestate  was  clearlj^  indebted 
to  the  defendant,  and  the  administrator  had  money  in  his  hands 
ready  to  pay  the  debt.^     And  so  in  Rhode  Island.^ 

In  Delaware,*  and  in  West  Virginia,^  an  administrator  cannot 
be  summoned  as  garnishee. 

In  Arkansas,  administrators  are  considered  exempt  from  gar- 
nishment, even  after  a  demand  has  been  allowed  against  the 
estate,  in  favor  of  the  defendant,  and  an  order  made  by  the  pro- 
bate court  upon  the  administrator  to  pay  it.^  And  in  North 
Carolina  an  administrator  cannot  be  required  to  answer,  as 
garnishee,  whether  his  intestate  was  indebted  to  the  defendant.^ 

In  Alabama,  however,  it  seems  to  be  conceded  that  an  admin- 
istrator may  be  charged  as  garnishee  in  respect  of  a  debt  due 
from  his  intestate  to  the  defendant,^  but  not  unless  he  is  sum- 
moned in  his  representative  capacity.^ 

In  Mississippi,  where  the  statute  provides  that  "  executors  and 
administrators  may  be  garnished  for  a  debt  due  by  their  testator 
or  intestate  to  the  defendant,"  the  insolvency  of  the  estate  does 
not  prevent  the  garnishment,  though  the  law  there  provides  that 
an  insolvent  estate  shall  not  be  sued.  The  garnishment  holds 
whatever  dividend  the  estate  may  suffice  to  pay.^*^ 

1  Brooks  V.  Cook,  8  Mass.  246.  ^  Terry  v.  Lindsay,  3  Stewart  &  Por- 

2  Waite  V.  Osborne,  11  Maine,  185.  ter,  317  ;  Tillinghast  v.  Jolinson,  5  Ala- 

3  Conway  v.  Armington,  11  Rhode  bama,  514.  But  see  Mock  v.  King,  15 
Island,  116.  Alabama,  66,  cited  post,  §  498,  for  a  dif- 

*  Marvel  V.Houston,  2  Harrington,  349.  ferent  view  as  to  tlie  garnishment  of  an 

6  Parker   v.   Donnally,   4    West    Vir-  administrator  on  account  of  a  distributive 

ginia,  648.  share  of  a  distributee. 

6  Thorn  v.  Woodruff,  5  Arkansas,  55 ;  ^  Tillinghast  v.  Johnson,   5  Alabama, 

Fowler  v.  McClelland,  Ibid.  188.  514. 

T  Welch  V.  Gurley,  2  Hay  wf)od  (N.  C),  i"  Holman   v.  Fisher,   49   Mississippi, 

334 ;  Gee  v.  Warwick,  Ibid.  354.  472. 
[414] 


CHAP.  XXII.]       HOLDS   DEFENDANT'S   PROPERTY.  §  498 

§  497.  In  New  Hampshire,  in  Delaware,  and  in  Missouri,  how- 
ever, while  the  principle  announced  in  Massachusetts  was  recog- 
nized as  sound,  it  was  considered  to  be  inapplicable,  where  the 
administrator  had  been,  by  the  proper  tribunal,  adjudged  and 
ordered  to  pay  a  certain  sum  to  a  creditor  of  the  estate  ;  and  in 
such  case  the  administrator  was  charged  as  garnishee  of  the  party 
to  whom  the  money  was  ordered  to  be  paid.^  The  reason  of 
this  exception  was  given  by  the  Superior  Court  of  New  Hamp- 
shire, and  adopted  by  the  Supreme  Court  of  Missouri.  In  the 
language  of  the  former,  "  an  administrator,  till  he  is  personally 
liable  to  an  action  in  consequence  of  his  private  promise,  the  set- 
tlement of  the  estate,  some  decree  against  him,  or  other  cause, 
cannot  be  liable  to  a  trustee  process.  Because,  till  some  such 
event,  the  principal  has  no  ground  of  action  against  him  in  his 
private  capacity;  and  he  is  bound  to  account  otherwise  for  the 
funds  in  his  hands.  The  suit  against  him,  till  such  an  event,  is 
against  him  in  his  representative  capacity,  and  the  execution 
must  issue  to  be  levied  de  bonis  testatoris  and  not  de  bonis  propriis. 
But  in  the  present  case  the  trustee  was  liable  in  his  private 
capacity  to  the  defendant  for  the  dividend.  The  debt  had  been 
liquidated,  and  a  decree  of  payment  passed.  The  debt  was  also 
due  immediately.  Execution  for  it  would  run  against  his  own 
goods ;  and  the  trustee  process  would  introduce  neither  delay  nor 
embarrassment  in  the  final  settlement  of  the  estate."  ^ 

In  Vermont,  where  an  administrator  had  been  decreed  by  the 
probate  court  to  deliver  property  to  a  female  distributee  of  the 
estate,  and  was  afterwards  summoned  as  garnishee  of  the  husband 
of  the  distributee,  the  court  admitted  the  general  princix^le  of 
the  exemption  of  an  administrator  from  garnishment;  bat  in  view 
of  the  peculiar  statute  of  that  State,  and  of  the  fact  that  a 
decree  of  distribution  had  passed,  charged  the  administrator  as 
garnishee.^ 

§  498.  In  Alabama  it  was  held,  on  the  authority  of  the  Massa- 
chusetts rule  as  previously  stated,*  that  an  administrator  could 
not  be  charged  as  garnishee  of  one  of  the  distributees  of  the  es- 
tate, in  respect  of  moneys  in  his  hands  as  administrator.^     In 

1  Adams    v.   Barrett,   2   New    Hamp.  ^  Adams  v.  Barrett,  2  New  Ilamp.  374. 

374;  Fitchett   v.  Dolbee,  3   Harrington,  ^  l^arks  y.  Cushman,  9  Vermont,  o20. 

267;  Curling  v.  Hyde,  10  Missouri,  374;  *  Ante,  §  494. 

Richards  v.  Griggs,  IG  Ibid.  41G.  ^  Mock  v.  King,  15  Alabama,  66. 

[415] 


§  499  CAPACITY   IN   WHICH    GARNISHEE      [CHAP.  XXII. 

Peimsylvaiiia,  under  a  statute  which  in  terms  authorized  the  gar- 
nishment of  administrators,  it  was  held,  that  a  distributive  share 
of  personal  estate  could  not  be  attached,  before  the  administrator 
had  settled  his  account,  so  as  to  show  what  is  due  from  him  to 
the  distributee.^  And  in  Massachusetts,  where  a  similar  statute 
now  exists,  it  was  decided  that  an  administrator  cannot  be  charged 
under  a  writ  served  on  him  between  the  time  when  administra- 
tion is  decreed  to  him,  and  that  of  the  filing  and  approval  of  his 
bond  and  the  delivery  of  letters  to  him.''^  And  in  JMaine,  under 
a  statute  authorizing  "  any  debt  or  legacy,  due  from  an  executor 
or  administrator,  and  any  goods,  effects,  and  credits  in  his  hands 
as  such,"  to  be  attached  by  garnishment,  it  was  decided  that  an 
administrator  could  not  be  charged  as  garnishee,  in  respect  of  a 
negotiable  promissory  note  of  his  intestate,  held  by  the  defend- 
ant, where  the  same  statute  forbids  the  garnishment  of  a  person 
in  respect  of  a  negotiable  note  made  by  him.^ 

§  499.  Executors.  It  is  well  settled  in  England  and  the 
United  States,  as  a  general  proposition,  that  an  executor  cannot 
be  charged  as  garnishee,  in  respect  of  a  pecuniary  legacy  be- 
queathed by  his  testator.'^  To  this,  however,  an  exception  would 
be  made,  as  in  the  case  of  administrators,  where  the  executor  has 
been  ordered  by  the  probate  court  to  ^jay  the  amount  to  tlie 
legatee.^ 

i  Bank  of  Chester  v.  Ralston,  7  Penn.  tors,  4th  Am.  Ed.  478;  Barnes  v.  Treat, 
State,  4b2;  Hess  v.  Shorb,  Ibid.  2bl ;  7  Mass.  271;  Whichell  y.  Allen,  1  Conn. 
McCreary  v.  Topper,  10  Ibid.  4iy.  In  385;  Beckwith  v.  Baxter,  3  New  Hamp. 
Hartle  v.  Long,  5  Penn.  State,  491,  an  07;  Shevveil  v.  Keen,  2  Wharton,  332; 
administrator  was  garnished,  when  there  Barnett  v.  Weaver,  Ibid.  418;  Picquet  v. 
was  no  law  autiiorizing  sucii  a  proceed-  Swan,  4  Mason,  443.  In  opposition  to 
ing.  Eleven  years  afterwards  such  a  the  doctrine  staled  in  tlie  text,  the  Su- 
law  was  enacted,  and  the  plaintiff  tlien  preme  Court  of  Indiana  stands  alune,  in 
issued  a  scire  facias  to  subject  in  the  holding  an  executor  chargeable  as  gar- 
hands  of  the  administrator  certain  moneys  nishee,  in  respect  of  an  unascertained 
which  had  then,  by  the  death  of  tlie  distributive  share  of  an  heir  of  a  dece- 
widow,  become  payable  to  the  defendant ;  dent.  The  statute  under  which  this  de- 
but the  court  held,  that  the  law  could  cision  was  given  provided  that  "the 
have  no  retrospective  operation,  and  that  lands,  tenements,  hereditaments,  goods, 
as  the  moneys  were  not,  before  its  pas-  chattels,  rights,  credits,  moneys,  and 
sage,  liable  to  the  attachment,  no  pro-  effects,  of  any  and  all  persons  not  resi- 
ceedings  based  on  the  original  attachment  dents  of  this  State,  are  and  shall  be 
could  reach  it.  liable  for  the  payment  of  debts  and  other 

^  Davis  V.  Davis,  2  Cushing,  111.  demands,  by  suit  to  be  instituted  by  the 

3  Commercial  Bank  v.  Neally,  39  process  of  foreign  attachment."  Strat- 
Maine,  402.  ton  v.  11am,  8  Indiana,  84. 

4  Priv.  Bond.  2G7  ;  Toller  on  Execu-  ^  Eitchettr.  Dolbee,  3  Harrington,  267. 

[41(3] 


CHAP.  XXII.]      HOLDS   DEFENDANT'S   PROPERTY.  §  499 

The  earliest  American  case  on  this  subject,  with  which  we  are 
acquainted,  came  up  in  Massachusetts,  where  it  was  held,  that  a 
pecuniary  legacy  in  the  hands  of  an  executor  is  not  "goods, 
effects,  or  credits  ; "  and  that  the  principles  which  exempt  a 
public  officer  from  garnishment,  apply  with  equal  force  to  the 
case  of  an  executor ;  and  this  without  reference  to  whether  the 
garnishment  took  place  before  or  after  the  probate  of  the  will.^ 

The  same  point  came  up  in  a  similar  case  in  Connecticut, 
where  the  garnishment  took  place  after  the  probate  of  the  will, 
and  the  acceptance  by  the  executor  of  his  appointment.     The 
court  below  instructed  the  jury  that  the  executor  was  in  contem- 
plation of  law  the  debtor  of  the  defendant,  the  legatee,  and  liable 
to  pa}'  the  plaintiff's  claim  out  of  his  own  estate.     The  Supreme 
Court,  in  reversing  the  judgment,  use  the  following  language: 
"  An  executor  cannot  be  considered  as  the  debtor  of  a  legatee. 
The  claim  is  against  the  testator  or  his  estate  ;  and  the  executor 
is  merely  the  representative  of  the  deceased.     There  cannot  be  a 
debt  due  from  the  executor  within  the  meaning  of  the  statute. 
Nor  can  a  person,  like  an  executor,  deriving  his  authority  from 
the  law,  and  bound   to  perform  it  according  to  the  rules  pre- 
scribed by  law,  be  considered  as  a  trustee,  agent,  attorney,  or 
factor  within  the  statute ;  and  this  for  the  best  of  reasons.     In 
the  common  case  of  agents,  trustees,  and  factors,  the  creditor  can 
easily  place  himself  in  the  shoes  of  the  absconding  debtor,  and 
prosecute   his   claim   without   inconvenience   to   the   garnishee. 
But  such  would  not  be  the  case  with  an  executor.     It  would  not 
only  embarrass  and  delay  the  settlement  of  estates,  but  would 
often  draw  them  from  courts  of  probate,  where  they  ought  to  be 
settled,  before  the  courts  of  common  law,  who  would  have  no 
power  to  adjust  and  settle  his  accounts.     Such  an  interference 

1  Barnes  v.  Treat,  7  Mass.  271.     In  making   no  mention   of  the  legacy.    It 

Maine,  under   a    statute  providing   that  was  objected,  on  tlie  authority  of  Barnes 

"any   debt  or  legacy   due   from   an  ex-  v.    Treat,    that    legacies    could    not    be 

ecutor  or  administrator,  and  any  goods,  regarded  as  goods,  effects,  or  credits,  and 

effects,  and  credits  in  liis  hands,  as  such,  that  therefore  the  legacy  was  not  reached 

may   be   attached   by    trustee    process,"  by  the  process  ;  but  the  court  held,  that, 

an  executor  was  garnished  in  respect  of  as  the  statute  authorized  the  attachment 

a   pecuniary   legacy  bequeatlied   to   the  of  legacies,  and  yet  made  no  change  in 

defendant,  and  tlie  writ  was  in  the  com-  the  form  of  the  writ,  it   was  equivalent 

mon  form  sunmioning  the  garnishee  to  to  a  legislative  declaration  that  legacies 

ai)pear  and  sliow  cause  why  execution  should  be  regarded  as  included  in  one  of 

should  not  issue  against  the  defendant's  those   terms.     Cummings   v.   Garvin,  65 

"  goods,  effects,  or  credits  "  in  his  hands,  Maine,  301. 

27  [417] 


§499 


CAPACITY   IN   WHICH   GARNISHEE        [CHAP.  XXII. 


might  produce  much  inconvenience,  and  prevent  the  executor 
from  executing  his  office  as  the  law  directs."  ^ 

This  subject  received  careful  and  able  treatment  by  the 
Supreme  Court  of  Pennsylvania,  in  a  case  where  the  amount 
involved  was  large,  and  the  matter  was  fully  discussed  by  emi- 
nent counsel.  The  question  presented  was,  in  effect,  the  same 
as  in  the  cases  which  arose  in  Massachusetts  and  Connecticut,  and 
the  court,  in  an  elaborate  opinion,  decided  that  an  executor  could 
not  be  charged  in  respect  of  a  legacy  due  to  the  defendant.^ 


»  Winchell  v.  Allen,  1  Conn.  385. 

2  Siiewell  V.  Keen,  2  Wharton,  332. 
The  opinion  of  the  court  was  in  the  fol- 
lowing terms  :  "  In  every  case  in  which 
a  determination  has  taken  place  on  the 
question  whether  a  foreign  attachment 
would  lie  for  a  legacy,  it  has  been  held 
that  it  would  not ;  and  some  of  these 
cases  have  occurred  under  statutory 
regulations  on  the  subject,  very  similar 
to  our  own.  Various  reasons  have  been 
given  for  coming  to  this  result ;  and  a 
little  reflection  convinces  us  that  the 
proceedings  by  foreign  attachment  can- 
not be  applied  to  the  case  of  a  legacy, 
without  great  inconvenience  and  mani- 
fest incongruity. 

"  A  pecuniary  legacy  is  not  a  debt. 
It  is  a  sum  of  money,  payable  by  the 
executor  or  administrator  out  of  the  es- 
tate of  the  decedent,  if  sufficient  assets 
remain  in  his  hands,  after  discharging 
the  debts  of  the  deceased,  and  other  re- 
sponsibilities, and  provided  the  legatee 
previously  complies  with  certain  requi- 
sites prescribed  by  the  acts  of  assembly. 
Generally  it  is  not  recoverable  at  law, 
but  is  subjected  to  chancery  jurisdiction, 
which  treats  the  executor  as  trustee  of 
the  estate  for  the  benefit  of  those  inter- 
ested in  it.  In  Pennsylvania,  a  legacy 
is  recoverable  in  a  common-law  court,  by 
the  act  of  1772,  there  being  no  court  of 
chancery  ;  but  that  act  gives  peculiar 
powers  to  the  court ;  and  the  executor's 
duty  is  still  in  nature  of  a  trust,  in  rela- 
tion to  legacies ;  and  they  are  payable 
only  on  the  performance  of  certain  con- 
ditions by  the  legatee.  He  must  make 
a  previous  demand,  and  must  tender  or 
file  a  refunding  bond,  not  so  much  for 
the  protection  of  the  executor,  as  for 
[418] 


the  benefit  of  creditors  who  may  subse- 
quently establish  claims  against  the  es- 
tate. If  a  foreign  attachment  be  per- 
mitted, by  which  the  assets  in  the  hands 
of  the  executor  are  to  be  eventually  ap- 
propriated to  the  attaching  creditor,  the 
legacy  may  be  recoverable  without  de- 
mand, and  without  filing  a  refunding 
bond.  For  the  legatee  would  not  be  ex- 
pected to  give  such  bond,  and  there 
exists  no  power  in  the  court  to  compel 
the  attaching  creditor  to  do  it,  or  to  au- 
thorize the  executor  to  receive  it  from 
him.  If  the  refunding  bond  could  be 
given,  an  extraordinary  result  might  fol- 
low. The  plaintiff,  before  the  payment 
of  the  money  by  the  garnishee,  always 
gives  security  to  restore  the  amount  re- 
ceived, if  within  a  year  and  a  day  the 
defendant  should  appear  to  disprove  the 
debt.  If,  within  the  year  and  a  day, 
the  defendant  issue  his  scire  facias  ad  dis- 
probandum  debitum  and  succeeds,  and  re- 
covers back  his  legacy,  he  tlien  gets  it 
without  giving  any  refunding  bond  ;  and 
the  plaintiff  may  be  compelled,  in  the 
event  of  new  debts  against  the  estate 
being  afterwards  established,  to  pay  the 
amount  a  second  time  on  his  refunding 
bond.  Such  consequences  evince  that 
the  process  by  foreign  attachment  cannot 
be  harmonized  with  the  acts  of  assembly 
concerning  the  recovery  of  legacies. 

"  Another  circumstance  of  weight  is, 
that  an  executor  or  administrator  is,  to  a 
certain  extent,  an  officer  of  the  law, 
clothed  with  a  trust  to  be  performed 
under  prescribed  regulations.  It  would 
tend  to  distract  and  embarrass  those 
officers,  if,  in  addition  to  the  ordinary 
duties  which  the  law  imposes,  of  them- 
selves often  multiplied,  arduous,  and  re- 


CHAP.  XXII.]       HOLDS   DEFENDANT'S   PROPERTY. 


§501 


§  500.  While,  however,  an  executor  cannot  be  charged  as  gar- 
nishee in  respect  of  a  legacy  bequeathed  by  his  testator,  it  does 
not  follow  that  in  no  case  can  a  legacy  be  subjected  to  attach- 
ment against  the  legatee  ;  for  if  land  be  devised  with  a  legacy 
charged  upon  it,  the  devisee  will  be  held  as  garnishee  of  the 
legatee,  in  respect  of  the  legacy.^ 

§  501.  In  Massachusetts,  a  statute  was  enacted,  providing  that 
"  any  debt  or  legacy  due  from  an  executor  or  administrator,  and 
any  other  goods,  effects,  and  credits,  in  the  hands  of  an  executor 
or  administrator,  as  such,  may  be  attached  in  his  hands  by  the 
process  of  foreign  attachment."  ^  Under  this  statute  it  has  been 
held,  that  a  legacy  in  the  hands  of  an  executor  is  not  such  a  con- 
tingent liability  as  will  prevent  its  being  attached,  because  it  can 
be  ascertained  by  the  settlement  of  the  estate  whether  there  are 
assets  sufficient  for  the  payment ;  and  when  necessary,  the  court 
will  continue  the  case  until  it  can  be  seen  whether  the  assets  are 
sufficient  for  that  purpose ;  ^  or,  if  there  be  not  personalty  suffi- 


sponsible,  they  were  drawn  into  conflicts 
created  by  the  interposition  of  creditors 
of  legatees,  and  conipeLled  to  withliold 
payment  of  legacies  without  suit ;  to 
suspend  indefinitely  the  settlement  of 
estates;  to  attend,  perhaps,  to  numerous 
rival  attachments  ;  to  answer  interroga- 
tories on  oath,  and  to  be  put  to  trouble 
and  expense  for  the  benefit  of  third  per- 
sons, no  way  connected  with  the  estate, 
nor  within  the  duties  of  their  trust.  It 
has  been  decided  that  money  in  the  hands 
of  a  prothonotary  or  sheriff  cannot  be 
intercepted  by  a  creditor  of  the  ijarty 
entitled  to  it ;  but  it  must  be  paid  over 
to  himself  only.  The  case  of  an  executor 
or  administrator  is  analogous  to  that  of 
a  sheriff  or  prothonotary.  He  has  the 
funds  in  his  hands  as  an  officer  or  trustee 
authorized  by  law  ;  and  if  a  new  party 
were  allowed  to  levy  on  it  by  attachment, 
there  would  be  no  end  of  disputes  and 
lawsuits ;  and  no  business  could  be  cer- 
tain of  ever  being  brought  to  a  close 
within  a  reasonable  time.  It  is  of  great 
importance  to  the  interests  of  heirs, 
creditors,  and  legatees,  that  the  affairs 
of  a  decedent's  estate  be  kept  as  simple 
and  distinct  as  possible,  that  its  concerns 
be  speedily  closed  and  tiie  estate  adjusted. 
It  is  moreover  settled  that  an  executor 


cannot  be  sued  as  defendant,  in  an  at- 
tachment by  a  creditor  of  the  testator, 
and  tlie  goods  of  the  testator  attached  to 
recover  the  debt.  The  reason  is,  that 
the  estate  of  the  testator  ought  to  come 
into  the  hands  of  the  executor,  that  he 
may  administer  it  according  to  law,  and 
pay  the  debts  if  tlie  assets  suffice ;  and 
they  ought  not  to  be  stopped,  and  the 
executor  subjected  to  new  responsibilities, 
by  proceedings  in  attachment.  Tliese 
reasons  apply  with  equal  force  to  the 
attempt  to  make  an  executor  garnishee, 
for  the  purpose  of  paying  out  of  the 
assets  in  his  hands  the  debt  due  to  a 
creditor  of  a  legatee.  These  funds  must 
travel  only  iu  the  path  pointed  out  by 
the  laws  relating  to  decedents'  estates,  in 
their  various  branches,  and  cannot  be 
diverted  out  of  that  patli  without  inter- 
fering with  salutary  regulations,  and 
violating  some  of  the  most  important 
provisions  of  tlie  acts  of  assembly."  See 
Barnett  v.  Weaver,  2  Wharton,  418; 
Young  V.  Young,  2  Hill  (S.  C),  42-5. 

1  Piper  V.  Piper,  2  New  Hamp.  439  ; 
Woodward  v.  Woodward,  4  Halsted,  115. 

-  Revised  Statutes  of  Massachusetts, 
c;  lOU,  §  62. 

3  Holbrook  v.  Waters,  19  Pick.  354 ; 
Wheeler  v.  Bowen,  20  Ibid.  563. 
[419J 


§  503  CAPACITY   TN   ^VHICH    GARNISHEE       [CHAP.  XXII. 

cient  for  the  pa^anent,  until  license  can  be  obtained  to  sell  real 
estate  for  that  purpose.^  And  if  the  executor,  after  being  sum- 
moned as  garnishee,  pay  over  the  legacy  to  the  legatee,  such 
payment  will  not  protect  him,  and  will  be  regarded  as  such  an 
acknowledgment  that  there  were  assets  in  his  hands,  that  he  will 
not  be  entitled  to  any  continuance  thereafter,  for  the  purpose  of 
having  that  fact  determined  by  the  settlement  of  the  estate.^  In 
all  such  cases  the  attaching  plaintiff  must,  if  required  by  the  ex- 
ecutor, give  bond  to  refund  the  money,  if  the  same  should  be 
needed  to  satisfy  any  demands  afterwards  recovered  against  the 
estate,  and  to  indemnify  the  executor.^  But  there  does  not  seem 
to  be  a  disposition  in  the  courts  of  that  State  to  extend  the 
operation  of  the  statute  in  question  beyond  its  clear  intendment; 
for  they  refused  to  charge  an  executor  as  garnishee  of  one  to 
whose  daughter  a  legacy  was  left,  and  which  descended  to  him 
upon  the  death  of  his  daughter ;  because,  before  any  proceeding 
could  be  instituted  against  the  executor  for  the  legacy,  adminis- 
tration on  her  estate  was  necessary,  and  the  legacy  would  be 
assets  in  the  hands  of  her  administrator."^ 

§  502.  Guardians.  Persons  acting  as  guardians  of  infants  are 
considered  to  stand  in  the  same  position  as  administrators  and 
executors,  and  to  come  within  the  general  principle  before  stated, 
and,  therefore,  not  liable  as  garnishees  in  respect  of  property  of 
their  wards  in  their  possession,  as  guardians.^  So,  in  New 
Hampshire,  with  regard  to  a  guardian  of  an  insane  person ;  at 
least  until  his  accounts  have  been  adjusted  by  the  probate  court, 
and  a  balance  found  in  his  hands.^ 

§  503.  Sheriffs.  The  same  considerations  which  forbid  the 
garnishment  of  executors,  administrators,  and  guardians,  require 
that  all  ministerial  officers,  having  official  possession  of  property 
or  money,  should  be  exempt  from  that  proceeding.     We  accord- 

'  Cady  V.  Comey,  10  Metcalf,  459.  Court  of  Massachusetts  distinguislied  the 

2  Hoar  V.  Marshall,  2  Gray,  251.  case  of  a  spendthrift  under  guardianship 

8  Cady  V.  (yomey,  10  Metcalf,  459.  from  that  of  a  minor,  and  charged  as 

4  Stills  V.  Harmon,  7  Gushing,  406.  garnishee  a  tenant  of  the  ward's  prop- 

5  Gassett  v.  Grout,  4  Metcalf,  486;  erty,  on  account  of  rent  due  for  the 
Hansen  v.  Butler,  48  Maine,  81 ;  Perry  v.  premises,  which  he  was  bound  to  pay  to 
Tliornton,  7  Rhode  Island,  15;  Godbold  the  guardian. 

V.  Bass,  12  Richardson,  202.     In  Hicks  v.  ^  Davis  v.  Drew,  6  New  Hamp.  399. 

Chapman,    10  Allen,  463,  the   Supreme 
[420] 


CHAP.  XXII.]     HOLDS  defendant's  propeety.  §  505 

ingly  find  that,  almost  without  exceiDtion,  the  courts  in  England  ^ 
and  this  country  have  taken  decided  ground  against  all  attempts 
to  reach,  by  garnishment,  money  in  the  hands  of  sheriffs,  received 
and  held  by  them  in  their  official  capacity. 

§  504.  This  subject  has  been  presented  in  three  aspects  :  1.  By 
the  levy  of  an  execution  by  an  ofl&cer  on  money  in  his  hands  col- 
lected on  execution ;  2.  By  the  levy  of  an  attachment  on  such 
money  ;  and  3.  By  the  garnishment  of  the  sheriff  in  respect 
thereof.  The  object  aimed  at  in  each  of  these  cases  being  the 
same,  the  general  principles  governing  each  are  applicable  to  all, 
and  cannot  be  affected  by  the  difference  in  the  modes  of  attain- 
ing the  same  result.  Whether  the  proceeding  be  by  actual  levy 
or  by  garnishment,  cannot  change  the  aspect  of  the  question, 
since  the  latter  is  in  effect  as  much  an  attachment  as  the  former. 
Hence  there  is  no  just  ground  for  the  distinction  which  has  been 
made  in  favor  of  allowing  the  money  to  be  reached  by  garnish- 
ment as  a  right  or  credit  in  the  sheriff's  hands,  though  held  not 
to  be  attachable  by  levy.  Obviously,  if  its  abstraction  from  his 
custody  by  levy  be  inadmissible,  the  law  will  not  tolerate  its  ab- 
straction by  a  circuitous  and  less  direct  method.  We  shall,  there- 
fore, in  the  consideration  of  the  subject,  use  indiscriminately  the 
decisions  relating  to  the  three  modes  of  proceeding  above  re- 
ferred to. 

§  505.  The  first  and  leading  case  in  this  country,  bearing  on 
this  subject,  was  decided  by  the  Supreme  Court  of  the  United 
States.  A  sheriff  having  collected  money  on  execution,  levied 
thereon  an  execution  which  he  held  against  the  person  for  whom 
the  money  was  collected.  Two  questions  were  made  :  1.  Can  an 
execution  be  levied  on  money  ?  and  2.  Can  it  be  levied  on  money 
in  the  hands  of  the  ofl&cer  ?  The  court  decided  the  former  aflfirm- 
atively,  and  held  the  following  language  in  reference  to  the  lat- 
ter :  "  The  general  rule  of  law  is,  that  all  chattels,  the  property 
of  the  debtor,  may  be  taken  in  execution,  and  whenever  an  offi- 
cer has  it  in  his  power  to  satisfy  an  execution  in  his  hands,  it  is 
his  duty  to  do  so,  and  if  he  omits  to  perform  his  duty,  he  must 
be  accountable   to  those  who  may  be  injured  by  his  omission. 

1  1  Leonard,  30,  2G4  ;  Priv.  Londini,  Bacon's  Abridgment,  Customs  of  Lon- 
265  ;    Comyns's  Digest,  Attachment,  D  ;     don,  H. 

[421] 


§  505  CAPACITY   IN  WHICH   GARNISHEE       [CHAP.  XXn. 

But  has  money,  not  yet  paid  to  the  creditor,  become  his  prop- 
erty ?  That  is,  althougli  liis  title  to  the  sum  levied  may  be  com- 
plete, has  he  the  actual  legal  ownership  of  the  specific  pieces  of 
coin  which  the  officer  may  have  received  ?  On  principle  the 
court  conceives  that  he  has  not  this  ownership.  The  judgment 
to  be  satisfied  is  for  a  certain  sum,  not  for  the  specific  pieces 
which  constitute  that  sum,  and  the  claim  of  the  creditor  on  the 
sheriff  seems  to  be  of  the  same  nature  with  his  claim  under  the 
judgment,  and  one  which  may  be  satisfied  in  the  same  manner. 
No  right  would  exist  to  pursue  the  specific  pieces  received  by 
the  officer,  although  they  should  even  have  an  ear-mark ;  and  an 
action  of  debt,  not  of  detinue,  may  be  brought  against  him  if  he 
fails  to  pay  over  the  sura  received,  or  converts  it  to  his  own  use. 
It  seems  to  the  court,  that  a  right  to  specific  pieces  of  money  can 
only  be  acquired  by  obtaining  the  legal  or  actual  possession  of 
them,  and  until  this  is  done,  there  can  be  no  such  absolute  own- 
ership as  that  execution  may  be  levied  on  them.  A  right  to  a 
sum  of  money  in  the  hands  of  a  sheriff  can  no  more  be  seized 
than  a  right  to  a  sum  of  money  in  the  hands  of  any  other  person, 
and  however  wise  or  just  it  may  be  to  give  such  a  remedy,  the 
law  does  not  appear  yet  to  have  given  it."  The  court  then  com- 
ment upon  some  English  cases  which  had  been  cited,  and  thus 
conclude  the  consideration  of  this  branch  of  the  case  :  "  Consid- 
ering the  case  then  either  on  principle  or  authority,  it  appears  to 
the  court  that  the  creditor  has  not  such  a  legal  property  in  the 
specific  pieces  of  money  levied  for  him  and  in  the  hands  of  the 
sheriff,  as  to  authorize  that  officer  to  take  those  pieces  in  execu- 
tion as  the  goods  and  chattels  of  such  creditor."  ^ 

The  same  conclusion  was  arrived  at  in  Kentucky,  in  a  case 
where  the  facts  were  almost  identical.^ 

In  Ohio,  the  same  question  arose,  in  consequence  of  a  sheriff 
levying  an  attachment  on  money  in  his  hands  collected  under  ex- 
ecution. There  the  court  said :  "  While  the  money  remains  in 
the  hands  of  the  officer,  it  is  in  the  custody  of  the  law.  It  does 
not  become  the  property  of  the  judgment  creditor  till  it  is  paid 
over,  and  consequently  it  is  not  liable  to  be  attached  as  his.  The 
writ  of  attachment  could  not  supersede  the  execution,  or  release 
the  sheriff  from  a  literal  compliance  with  its  command,  which 

1  Turner  v.  Fendall,  1  Cranch,  117.  ^  Ywsi  v.  Miller,  4  Bibb,  311. 

[422] 


CHAP.  XXII.]       HOLDS   DEFENDANT'S   PROPERTY.  §  506 

required  him  to  bring  the  money  into  court,  so  that  it  might  be 
subject  to  their  order.  ...  A  strong  argument  might  also  be 
drawn  from  the  mischievous  consequences  that  would  follow  such 
a  course  of  practice.  It  would  lead  to  endless  delay  and  vexa- 
tion. One  attachment  might  follow  another,  till  the  whole  de- 
mand was  absorbed  in  costs."  ^ 

§  506.  If,  then,  money  in  the  hands  of  a  sheriff  in  his  official 
capacity  cannot  be  levied  on  by  execution  or  attachment,  can  it 
be  reached  by  garnishment  ?  In  Vermont  and  New  Jersey,  the 
courts  have  held,  that  though  the  levy  is  impracticable,  yet  the 
garnishment  may  be  maintained,  on  the  ground  that  the  money 
is  a  right  or  credit  of  the  defendant's  in  the  sheriff's  possession.^ 
In  New  Hampshire,  the  doctrine  was  at  one  time  incidentally  as- 
serted, that  the  sheriff  could  not  be  garnished  before  the  return 
day  of  the  execution  ;  ^  but  afterwards  the  same  court  receded 
from  this  view,  and  sustained  such  a  garnishment.*  These  de- 
cisions are,  however,  overborne  by  the  weight  of  authority. 

This  question  received  an  early  consideration  and  decision  in 
Massachusetts.^  A  sheriff  had  collected  money  on  execution, 
and  before  the  writ  was  returnable  the  money  was  attached  in 
his  hands  by  garnishment,  under  an  attachment  against  the  ex- 
ecution creditor.  The  court  were  unanimous  in  discharging  the 
garnishee.  Parker,  J.,  said :  "  When  an  officer  receives  money 
upon  an  execution,  the  law  prescribes  his  duty  in  relation  to  it. 
He  is  not  bound  to  pay  it  over  to  the  creditor  until  the  return 
day  of  the  execution.  From  his  receipt  of  it  until  that  day,  it  is 
not  the  creditor's  money,  but  is  in  the  custody  of  the  law." 
Sewall,  J. :  "I  consider  the  statute  giving  this  process  of  for- 
eign attachment  as  a  very  beneficial  one,  and  am  therefore  for 
applying  a  liberal  construction  to  it.  But  there  must  be  bounds 
to  this  liberality.  In  the  case  before  us,  an  officer,  in  the  execu- 
tion of  a  precept  of  the  law,  has  received  money,  for  which  he 
is  accountable  to  a  third  person.  An  attempt  is  made  to  inter- 
rupt the  execution  of  the  precept,  and  to  divert  the  money  from 

1  Dawson  v.  Ilolcombe,  1  Ohio,  135.  Lovejoy  v.  Lee,  35  Ibid.  430;  Crane  v. 
See  Prentiss  v.   Bliss,  4   Vermont,  513;     Freese,  1  Harrison,  305. 

Dubois  V.  Dubois,  6  Cowen,  4'J4  ;  Crane  »  Adams   v.   Barrett,   2  New    Hamp. 

V.  Freese,  1    Harrison,  305;  Keddick  v.  374. 

Smith,  4  Illinois  (3  Scamnion),  451.  ■«  Woodbridge  v.  Morse,  5  New  Ilamp 

2  Conant  v.   Bioknell,  1   D.  Chipnian,  519. 

50  ;  Ilurlburt  v.  Hicks,  17  Vermont,  193 ;  5  Wilder  v.  Bailey,  3  Mass.  289. 

[423] 


§50.6  CAPACITY   IN   WHICH   GARNISHEE       [CHAP.  XXH. 

the  course  which  the  law  prescribed.  If  such  practice  should  be 
permitted,  great  inconvenience  and  mischief  would  be  the  conse- 
quence." Sedgwick,  J.,  after  arriving  at  the  conclusion  that 
the  money  was  neither  goods  nor  effects  of  the  execution  plain- 
tiff, thus  proceeds :  "  Neither  can  this  money,  in  my  opinion,  be 
considered  as  a  credit  in  the  hands  of  the  officer.  There  cannot 
be  a  credit  without  a  creditor  and  debtor.  There  is  nothing  in 
the  reason  of  the  thing,  resulting  from  the  relation  of  a  judg- 
ment creditor  and  an  officer  who  has  collected  money  for  him, 
which  renders  the  one  a  creditor,  and  the  other  a  debtor.  There 
is  nothing  said  in  any  of  the  books,  which  implies  that  that  rela- 
tion exists  between  them.  On  the  contrary,  money  so  collected 
is  in  the  custody  of  the  law,  and  the  sheriff  is  the  trustee  for  its 
safe-keef)ing.  I  confess  that  I  should  have  been  extremely  sorry 
to  have  found  that  the  attempt  to  charge  the  officer  as  the  trustee 
of  the  judgment  creditor  could  have  been  supported.  If  it  could, 
a  principle  would  have  been  established,  that  an  execution,  which 
has  been  justly  called /w^'s  et  fructus  of  legal  pursuits  might  be 
eternally^  defeated.  A  judgment  debtor  would  have  had  nothing 
more  to  do,  when  he  had  paid  the  money,  than  to  engage  a 
friend,  who  had,  or  who  would  pretend  that  he  had,  a  demand 
against  the  creditor,  and  fix  the  money  in  the  hands  of  the  offi- 
cer, as  long  as  there  could  be  any  pretence  of  keeping  alive  the 
suit ;  and  when  that  could  no  longer  be  done,  a  new  action  might 
be  instituted,  and  the  same  consequences  ensue,  and  so  on,  ad 
infinitum.  This  might  be  done  independently  by  the  debtor, 
merely  to  gratify  revenge  ;  it  might  be  done  by  collusion  between 
the  officer  and  the  debtor ;  or  it  might  be  done  even  by  the  offi- 
cer alone,  to  secure  to  himself  the  use  of  the  money,  which, 
from  its  amount,  might  vastly  overbalance  the  triffing  expenses 
which  he  would  incur."  Parsons,  C.  J.,  concurred  with  his 
associates  upon  substantially  the  same  grounds. 

This  case,  it  will  be  remarked,  presented  the  question  of  gar- 
nishment of  a  sheriff  before  the  return  day  of  the  execution.  In 
a  subsequent  case,  where  the  garnishment  took  place  after  the 
return  of  the  execution,  the  same  court  affirmed  and  applied  its 
previous  decision. ^ 

A  late  expression  of  the  views  of  that  court  on  this  subject, 
was  in  a  case  where  an  officer,  charged  with  the  service  of  crim- 

1  Pollard  V.  Ross,  5  Mass.  319. 
[424] 


CHAP.  XXII.]      HOLDS   DEFENDANT'S   PEOPERTY.  §  508 

inal  process  against  a  person,  arrested  him,  and,  as  incidental  to 
the  service  of  the  process,  took  from  him  money  and  property 
found  in  his  possession.  The  next  day,  being  satisfied  that  the 
prisoner  had  committed  no  crime,  he  went  to  the  jail  to  return 
the  money  and  property  to  him,  and  when  about  entering  the 
jail,  was  summoned  as  garnishee  of  the  prisoner.  The  question 
was,  whether  the  officer  was  exempt  from  garnishment,  under 
that  clause  of  the  statute  which  declared  that  no  person  should 
be  adjudged  a  trustee  "  by  reason  of  any  money  in  his  hands  as  a 
public  ofiicer,  and  for  which  he  is  accountable,  merely  as  such  offi- 
cer, to  the  principal  defendant."  The  court  held,  that  the  money 
was  taken  by  the  ofiicer  in  the  performance  of  his  ofiicial  dut}^  and 
that,  therefore,  he  could  not  be  charged  in  respect  thereof.^ 

The  doctrine  settled  in  Massachusetts,  has  been  also  established 
in  Maryland,  North  Carolina,  South  Carolina,  Alabama,  Tennes- 
see, Illinois,  Missouri,  Wisconsin,  and  California,  and  incidentally 
recognized  in  Maine.^  Viewed  either  as  sustained  by  authority, 
or  as  resting  on  sound  principles,  it  may  properly  be  considered 
as  settled. 

§  507.  If  money  collected  cannot  be  so  reached,  it  follows,  a 
fortiori^  that  a  sheriff  cannot  be  charged  as  garnishee  in  respect 
of  an  execution  in  his  hands  upon  which  the  money  has  not  been 
collected.^ 

§  508.  But  though  a  sheriff  holding  money  received  in  pay- 
ment of  an  execution,  and  which  ought  to  be  paid  to  the  execu- 
tion creditor,  cannot,  in  respect  thereof,  be  garnished,  yet  there 
are  other  circumstances  in  which  his  ofiicial  character  affords  him 
no  protection  from  garnishment.  In  all  the  cases  considered,  the 
money  was  in  the  sheriff's  hands  virtute  officii^  and  therefore  in 
the  custody  of  the  law.  But  where  money  in  his  hands  has 
ceased  to  be  in  such  a  position  as  to  claim  the  protection  of  the 
law,  he  will  be  subject  to  garnishment,  as  any  other  person  would 

1  Robinson  v.  Howard,  7  Gushing,  1  Tennessee,  208 ;  Drane  «.  McGavock,  7 
257  ;  Morris  v.  Penniman,  14  Gray,  220.  Humphreys,    132  ;  Lightner  v.  Steinagel, 

2  Farmers'  Bank  v.  Beaston,  7  Gill  &  33  Illinois,  510 ;  Marvin  v.  Hawloy,  9 
Johnson,  421 ;  Jones  v.  Jones,  1  Bland,  Missouri,  382 ;  Clymer  v.  Willis,  3 
443  ;  Overton  y.  Hill,  IMurphey,  47;  Blair  California,  363;  Staples  v.  Staples,  4 
V.  Cantey,  2  Speers,  34  ;  Burrell  v.  Letson,  Maine,  532 ;  Hill  v.  La  Crosse  &  M.  R.  R. 
Ibid.  378 ;  1   Strobhart,  239  ;  Zurcher  v.  Co.,  14  Wisconsin,  291. 

Magee,  2  Alabama,  253 ;  Pawley  v.  Gains,  »  Sharp  v.  Clark,  2  Mass.  91. 

[425] 


§  509  CAPACITY   IN  WHICH   GARNISHEE       [CHAP.  XXII. 

be.  Tlierefore,  Avhere  a  sheriff,  holding  an  execution,  sells  prop- 
erty, and  after  satisfjung"  the  execution  there  is  a  surplus  in  his 
hands,  it  is  considered  to  belong  to  the  defendant,  and  to  be 
held  by  the  sheriff  in  a  j)rivate,  and  not  in  liis  official,  capacity, 
and  may,  therefore,  be  reached  by  the  defendant's  creditors, 
either  by  direct  attachment  or  by  garnishment.^  The  same  rule 
extends  to  a  receiptor,  in  wliose  hands  the  officer  has  placed 
attached  property.  If  there  is  more  than  sufficient  to  satisfy  the 
attachment,  the  receiptor  may  be  charged  as  garnishee  of  the 
defendant  in  respect  of  the  surplus.^  And  where  one  who  had 
been  sheriff,  received,  while  in  office,  a  list  of  fees  to  collect  for 
a  register  of  a  county,  and  made  collections  thereof,  and  after 
both  he  and  the  register  had  gone  out  of  office  he  was  summoned 
as  garnishee  of  the  latter,  it  was  held,  that  the  money  collected 
by  him  was  not  in  eustodia  legis^  and  that  he  was  chargeable  as 
garnishee  in  respect  thereof.^  And  in  Connecticut,  where  an  ex- 
ecution commands  the  sheriff  "  that  of  the  money  of  the  said 
defendant,  or  of  his  goods,  chattels,  or  lands,  within  your  pre- 
cincts, you  cause  to  be  levied,  and  paid  and  satisfied  unto  the 
plaintiff'''  the  judgment  debt  and  costs,  it  was  decided  that  this 
language,  instead  of  the  ordinary  command  to  the  officer  to  have 
the  money  in  court,  made  him  the  agent  of  the  plaintiff  in  its  col- 
lection, and  that  he  might  be  charged  as  garnishee  of  one  for 
whom  he  had  collected  money  on  execution.^ 

§  509.  Clerks  of  Courts.  The  principles  applied  to  admin- 
istrators, executors,  guardians,  and  sheriffs,  are  applicable  to 
clerks  of  courts,  who  frequently  have  money  of  others  in  their 
possession  officially.  It  has  been  decided,  that  money  paid  into 
the  hands  of  a  clerk  on  a  judgment,^  money  in  the  possession  of 
a  clerk  in  any  manner  in  virtue  of  his  office,^  and  money  paid  into 

'  Watson  V.  Todd,  5  Mass.  271 ;  Orr  35   Vermont,  439 ;    Adams   v.  Lane,   38 

V.  McBryde,  2  Carolina  Law  Repository,  Ibid.  640. 

257  ;  King   v.  Moore,  6  Alabama,   160 ;  ^  Cole  v.  Wooster,  2  Conn.  203. 

Tucker  v.  Atkinson,  1  Humpbreys,  300 ;  ^  Robertson    v.  Beall,   10  Maryland, 

Davidson  v.  Clayland,  1  Harris  &  John-  125. 

son,  546  ;  Jaquett  v.  Palmer,  2  Harring-  *  New  Haven  Saw-Mill  Co.  v.  Fowler, 

ton,  144  ;  Wbeeler  v.  Smith,  11  Barbour,  28  Conn.  103. 

345  ;  Hearn  v.  Crutcher,  4  Yerger,  461 ;  ^  Ross  v.  Clarke,  1  Dallas,  354  ;  Alston 

Pierce  v.  Carleton,  12  Illinois,  358;  Light-  v.  Clay,  2  Haywood  (N.  C),  171. 
ner  n.  Steinagel,  33  Ibid.  510;  Dickison  «  Hunt    v.   Stevens,   3   Iredell,    365; 

V.  Palmer,  2  Richardson  Eq.  407  ;  Hill  v.  Drane  v.  McGavock,  7  Humphreys,  132. 
Beach,   1  Beasley,  31  ;  Lovejoy  v.  Lee, 
[426] 


CHAP.  XXII.]      HOLDS   DEFENDANT'S   PROPERTY.  §  509  a 

court,!  cannot  be  attached.  But  money  in  the  hands  of  a  clerk, 
arising  from  a  sale  of  land  in  partition,  which  he  has  been  or- 
dered by  the  court  to  pay  over  to  the  parties  concerned,  may, 
after  such  order,  be  attached.^  And  money  deposited  with  a 
clerk,  in  lieu  of  a  bond,  on  appeal  from  the  judgment  of  his  court, 
may  be  attached,  so  far  as  to  hold  the  rights  of  the  depositor 
therein,  but  not  so  as  to  interfere  with  the  clerk's  possession  or 
control.^ 

If  money  in  the  official  possession  of  a  clerk  cannot  be  reached 
by  garnishment,  much  less  can  the  service  of  an  attachment  on 
him  have  the  effect  of  attaching  a  judgment  in  favor  of  the 
attachment  defendant,  remaining  of  record  in  his  court.*  And 
still  less  is  the  officer  authorized  to  seize  the  record  of  the  judg- 
ment. The  only  mode  of  reaching  the  judgment  in  such  case  is, 
to  summon  the  judgment  debtor  as  garnishee.^ 

§  509  a.  Receivers,  Trustees  of  Courts,  and  Trustees  accountable 
to  Courts.  Money  in  the  hands  of  a  receiver  appointed  by  a 
court  cannot  be  attached  in  his  hands.^  In  Georgia,  this  rule 
was  applied  to  a  case  where  the  suit  in  which  the  receiver  was 
appointed  was  terminated  ;  for  he  was  accountable  to  the  court, 
and  the  money,  was,  therefore,  in  custodia  legis?  And  so  in 
Louisiana.^  And  in  Wisconsin  the  rule  was  applied,  where  the 
receiver  had  not  yet  reduced  the  property  to  actual  possession.^ 
The  rule  is  equally  applicable  to  a  trustee  appointed  by  a  court 
of  chancery  ;  ^"^  to  a  trustee  holding  property  which,  by  the  terms 
of  the  trust,  is  to  be  disposed  of  by  the  order  of  a  court ;  "  and 
to  a  master  in  chancery  holding  property  under  and  subject  to 
such  order.^2 

But  this  rule  is  subject  to  this  qualification,  —  that  if  the  right 

1  Farmers'  Bank  v.  Beaston,  7  Gill  &  "^  Field  v.  Jones,  11  Georgia,  413. 

Johnson,  421 ;  Murrell  v.  Johnson,  3  Hill  ^  Nelson  v.  Connor,  6  Robinson  (La.), 

(S.  C),  12;  Bowden  v.  Schatzell,  Bailey  339. 

Eq.  3G0.  9  Hagedon  v.  Bank  of  "Wisconsin,   1 

'^  Gaither  v.  Ballew,  4  Jones,  488.  Pinney,  61. 

8  Dunlop  V.  Paterson  F.  I.  Co.,  19  New  i"  Bentley  v.  Shrieve,  4  Maryland  Ch'y 

York  Supreme  Court,  027.  Decisions,  412. 

*  Daley  v.  Cunningham,  3  Louisiana  ^^  Cockey    v.   Leister,    12    Maryland, 

Annual,  55.  124. 

5  Hanna  v.  Bry,  5  Louisiana  Annual,  i'^  McKenzie  v.  Noble,  13  Richardson, 
651.  147. 

6  Glenn  v.  Gill,  2  Maryland,  1 ;  Taylor 
V.  Gillian,  23  Texas,  508. 

[427] 


§  510  CAPACITY    IN   WHICH   GARNISHEE        [CHAP.  XXII. 

of  the  attachment  defendant  to  money  held  by  a  trustee,  receiver, 
or  otlier  agent  of  a  court,  has  been  so  fixed  as  to  entitle  him  to 
receive  it  without  further  judicial  action,  the  trustee,  receiver,  or 
agent  may  be  charged  as  garnishee  in  respect  thereof.  Thus,  a 
trustee  appointed  in  an  equity  suit  to  sell  real  estate,  and  who 
has  sold  it,  and  has  in  his  hands  a  balance  due  to  one  of  the  par- 
ties to  the  suit,  may  be  charged  as  garnishee  in  respect  of  such 
balance.^  And  in  Alabama,  the  court  went  further,  and  charged 
a  register  of  a  court  of  chancery  as  garnishee,  in  respect  of  a  sur- 
plus of  money  belonging  to  a  defendant,  after  a  sale  of  property 
to  satisfy  a  mortgage  decree,  although  the  sale  had  not  been  con- 
firmed, and  he  was  directed  by  the  decree  to  report  his  doings  at 
the  next  term  of  the  court.^  And  in  Maryland,  the  Court  of 
Appeals,  referring  to  previous  cases  in  that  court,  said :  "  We  do 
not,  however,  understand  from  these  cases  that  an  attachment 
cannot  be  issued  and  laid  in  the  hands  of  a  trustee  before  a  final 
account,  and  that  it  would  not  be  effective  upon  a  sum  ascertained 
by  such  an  account  to  be  the  distributive  share  of  the  debtor  in 
the  attachment ;  but  that  the  process,  before  the  account  is 
stated,  cannot  affect  the  fund  or  the  trustee,  or  compel  any  mod- 
ification of  the  final  account,  for  the  benefit  of  the  attaching 
creditor."^ 

Whatever  doubt  may  exist  in  any  such  case  as  to  charging 
a  receiver,  trustee,  or  other  agent  of  a  court,  before  the  court 
has  ordered  him  to  pay  over  money  to  the  attachment  de- 
fendant, there  is  no  doubt  that  it  may  be  done  after  such  an  order 
has  been  made.* 

§  510.  Justices  of  the  Peace.  In  some  States,  it  is  the  practice 
for  money  collected  by  a  constable  on  an  execution  issued  by  a 
justice  of  the  peace,  to  be  paid  into  the  hands  of  the  justice.  It 
would  seem  to  follow,  from  the  numerous  decisions  previously 
considered,  that  such  an  officer  could  not  be  garnished  in  respect 
of  money  so  received,  and  in  Pennsylvania  it  has  been  so  held.^ 
But  in  Alabama,  it  was  decided  otherwise,  on  the  ground  (pecu- 

1  Van  Riswick  t'.  Lamon,  2  Mac  Ar-  *  Weaver  v.  Davis,  47  Illinois,  235 ; 
thur,  172.  Williams   v.  Jones,   38    Maryland,   555. 

2  Langdon  v.  Lockett,  6  Alabama,  And  see  Ante,  §  497  for  analogous  rul- 
727.  ings  in  the  case  of  an  administrator. 

3  McPherson  v.  Snowden,  19  Mary-  ^  Corbyn  v.  Bollman,  4  Watts  &  Ser- 
land,  197.     See  Groome  v.  Lewis,  23  Ibid,  geant,  342. 

137. 

[428] 


CHAP.  XXn.]   HOLDS  DEFENDANT'S  PROPEKTY.  §  512 

liar  to  their  system  of  laws)  that  the  justice  is  not  merely  a  judi- 
cial officer  in  relation  to  the  collection  of  small  debts,  but  the 
agent  of  the  person  who  intrusts  their  collection  with  him ;  and 
that  as  soon  as  the  money  is  collected,  his  character  as  a  magis- 
trate ceases,  and  he  holds  it  as  any  other  agent.^ 

§  511.  Trustees  of  Insolvents  and  Assignees  in  Banlcruptey.  In 
Massachusetts,  it  has  been  decided  that  eifects  in  the  hands  of  an 
assignee  of  a  bankrupt  cannot  be  reached  by  garnishment,  as  they 
are  not  the  effects  of  the  bankrupt,  but  are  by  law  vested  in  the 
assignee.^  Upon  the  same  ground,  and  also  because  the  attach- 
ment, under  such  circumstances,  of  the  effects  of  a  bankrupt  or 
insolvent,  would  utterly  defeat  the  whole  policy  of  the  bankrupt 
or  insolvent  laws,  the  same  decision  has  been  made  in  Maryland, 
with  regard  to  assignees  in  bankruptcy  and  trustees  of  insolvent 
debtors.^  In  the  former  State,  however,  this  exemption  of 
assignees  in  bankruptcy  was  at  one  time  held  to  extend  only  to 
cases  where  it  was  sought  to  reach  the  bankrupt's  effects  to  sub- 
ject them  to  the  j)ayment  of  his  debts.  Therefore,  where  an 
assignee  was  garnished  in  an  action  against  a  creditor  of  the 
bankrupt,  to  whom  a  dividend  of  the  bankrupt's  estate  was  due, 
he  was  charged  as  garnishee.*  It  does  not,  however,  appear  that 
the  question  was  raised  whether  an  officer  of  this  kind  was  ex- 
empted by  his  official  character  from  the  operation  of  this  process. 
But  recently  the  Supreme  Court  of  that  State  overruled  the  cases 
just  cited,  and  held  that  an  assignee  under  the  insolvent  law, 
having  money  in  his  hands,  payable  to  the  defendant  as  a  cred- 
itor of  the  insolvent,  could  not  be  charged  as  garnishee  in  respect 
thereof.^ 

§  512.  Disbursing  Officers.  We  have  seen  that  a  county  treas- 
urer could  not  be  charged  as  garnishee,  in  respect  of  a  sum  of 
money  due  to  the  defendant  from  the  county,  and  which  it  was 
the  treasurer's  duty  to  pay ;  ^  and  that  a  treasurer  of  a  school 
district  could  not  be  so  charged.'     A  similar  case  arose  in  Ken- 

1  Clark  V.  Boggs,  6  Alabama,  809.  ^  Colby   v.  Coates,   6   Gushing,  558 ; 

2  Oliver  v.  Smitii,  5  Mass.  183.  Dewing  v.  Wentworth,  11  Ibid.  499. 

3  Farmers'  Bank  v.  Beaston,  7  Gill  &  ^  Ante,  §  493 ;  Chealy  v.  Brewer,  7 
Johnson,  421.  Mass.   259 ;  Bulkley  v.  Eckert,  3  Penn. 

*  Jones  V.  Gorham,  2  Mass.  375 ;  De-  State,  368 ;  Pierson  v.  McCorraick,  1 
coster  V.  Livermore,  4  Ibid.  101.  Penn.  Law  Journal  li.  201. 

7  Ante,  §  494. 

[4-29] 


§  012  CAPACITY   IN   WHICH   GARNISHEE       [CHAP.  XXII. 

tuck)'',  where  it  was  ruled,  that  money  which  a  county  court  had 
ordered  the  sheriff  to  pay  to  the  jailer  of  the  county  for  his  ser- 
vices as  such,  could  not  be  attached  in  the  hands  of  the  sheriff.^ 
And  in  Illinois,  it  was  held,  that  a  treasurer  of  a  city  could  not 
be  charged  as  garnishee,  on  account  of  salary  due  from  the  city 
to  an  employee,  though  tlie  account  therefor  had  been  audited, 
and  the  treasurer  had  the  money  in  his  hands  to  pa}-^  it.^  The 
Supreme  Court  of  the  United  States  settled  the  same  rule  with 
regard  to  all  governmental  disbursing  officers.  The  U.  S.  Frigate 
Constitution  returned  from  a  cruise,  and  several  writs  of  attach- 
ment were  issued  by  a  justice  of  the  peace,  against  seamen  of  the 
frigate,  under  which  the  purser  of  the  ship  was  garnished.  The 
purser  admitted  before  the  justice  having  money  in  his  hands  due 
to  the  defendants,  but  contended  that  he  was  not  amenable  to  the 
process.  Judgment  was,  however,  given  against  him,  and,  on 
appeal  to  the  Superior  Couit  of  the  county,  was  affirmed.  The 
case  went  thence  to  the  Supreme  Court  of  the  United  States, 
which  tribunal  reversed  the  judgment,  and  in  doing  so  used  the 
following  language  :  "  The  important  question  is,  whether  the 
money  in  the  hands  of  the  purser,  though  due  to  the  seamen  for 
wages,  was  attachable.  A  purser,  it  would  seem,  cannot,  in  this 
respect,  be  distinguished  from  any  other  disbursing  agent  of  the 
government.  If  the  creditors  of  these  seamen  may,  by  process 
of  attachment,  divert  the  public  money  from  its  legitimate  and 
appropriate  object,  the  same  thing  may  be  done  as  regards  the 
pay  of  our  officers  and  men  of  the  army  and  of  the  navy ;  and 
also  in  every  other  case  where  the  public  funds  may  be  placed  in 
the  hands  of  an  agent  for  disbursement.  To  state  such  a  princi- 
ple is  to  refute  it.  No  government  can  sanction  it.  At  all  times 
it  would  be  found  embarrassing,  and  under  some  circumstances  it 
might  prove  fatal  to  the  public  service.  The  funds  of  the  gov- 
ernment are  specifically  appropriated  to  certain  national  objects, 
and  if  such  appropriations  may  be  diverted  and  defeated  by  State 
process  or  otherwise,  the  functions  of  the  government  may  be 
suspended.  So  long  as  money  remains  in  the  hands  of  a  disburs- 
ing officer,  it  is  as  much  the  money  of  the  United  States,  as  if  it 
had  not  been  drawn  from  the  treasury.  Until  paid  over  by  the 
agent  of  the  government  to  the  person  entitled  to  it,  the  fund 

i  Webb  V.  McCauley,  4  Bush,  8.  -  Triebel  v.  Colburn,  64  Illinois,  376. 

[430] 


CHAP.  XXII.]      HOLDS   DEPENDANT'S   PROPEBTY.  §  515 

cannot,  in  any  l^gal  sense,  be  considered  a  part  of  his  effects. 
The  purser  is  not  the  debtor  of  the  seamen.''  ^ 

§  513.  But,  where  the  garnishee,  though  acting  under  public 
authority,  is  not  a  public  officer,  but  merely  an  agent  for  a  par- 
ticular purpose,  a  distinction  has  been  made.  Thus,  where  a 
town  in  New  Hampshire  (in  pursuance  of  a  law  authorizing  the 
several  towns  to  make  a  disposition  of  the  public  money  deposited 
with  them  in  such  manner  as  each  town  should  by  major  vote 
determine),  voted  to  distribute  it  "  to  the  inhabitants  of  the  town 
per  ca'pita^''  according  to  a  census  to  be  taken,  and  appointed  an 
agent  to  make  the  distribution,  the  agent  was  charged  as  garnishee 
of  one  of  the  inhabitants  in  respect  of  his  distributive  share.^ 

§  514.  The  position  taken  by  the  Supreme  Court  of  the  United 
States,  that  the  money,  while  in  the  hands  of  the  disbursing  offi- 
cer, though  delivered  to  him  for  the  purpose  of  being  paid  to  the 
defendant,  is  still  the  money  of  the  government,  applies  as  well 
to  all  cases  where  an  agent  has,  without  any  privity  between  him 
and  the  defendant,  received  from  his  principal  money  to  be  paid  to 
the  defendant,  but  which  he  has  not  yet  paid,  or  agreed  with  the 
defendant  to  pay,  to  him.  There,  any  attempt,  in  a  proceeding 
against  the  party  to  whom  the  money  is  to  be  paid,  to  reach  it 
by  garnishment  of  the  agent,  Avill  be  unavailing  ;  for  he  is  not 
the  debtor  of  the  defendant,  nor  is  the  money  in  his  hands  the 
defendant's,  but  the  principal's.  The  only  way  to  reach  it  is  by 
garnishment  of  the  principal.^  The  case  is  different,  however, 
where  the  money  is  collected  for  the  defendant  by  A^s  agent. 
There,  the  agent  is  in  direct  privity  with  the  defendant,  and  the 
money  in  his  hands  is  the  defendant's,  and  he  may  be  charged  as 
garnishee  in  respect  thereof.* 

§  515.  Attorneys  at  Law.  It  seems  to  be  generally  conceded 
that  persons  practising  as  attorneys  at  law,  and  holding  money  of 

1  Buclianan  v.  Alexander,  4  Howard  '  8  Neuer  v.  O'Fallon,  18  Missouri,  277  ; 
Sup.  Ct.  20.  See  Averill  v.  Tucl<er,  2  Briggs  v.  Block,  Ibid.  281 ;  Barnard  v. 
Cranch  C.  C  644 ;  Clark  v.  Great  Bar-  Graves,  16  Pick.  41 ;  Huntley  v.  Stone, 
rington,  11  Pick.  260 ;  Mechanics  and  4  Wisconsin,  91.  See  Casey  v.  Davis, 
Traders'   Bank   v.   Hodge,    3    Robinson     100  Mass.  124. 

(La),  373;  6  Opinions  of  U.  S.  Attorneys-  •*  Kennedy  y.  Aldridge,  5  B.  Monroe, 

General,  750  ;  10  Ibid.  120.  141. 

2  "Wendell  v.  Pierce,  18  Nev*^  Hamp. 
502. 

[431] 


§516  CAPACITY   IN   WHICH   GARNISHEE        [CHAP.  XXII. 

their  clients,  are  not  protected  hy  their  legal  capacity  from  gar- 
nishment, but  are  considered  liable  in  respect  of  money  so  held 
by  them,  even  though  their  clients  could  maintain  no  action 
against  them  for  the  money  until  the  payment  of  it  should  have 
been  demanded.^ 

§  516.  Blunicipal  Corporations.  The  liability  of  these  bodies 
to  garnishment  has  been  diflferently  regarded  in  different  States. 
In  New  Hampshire,  under  a  statute  extending  the  operation  of 
an  attachment  to  "  any  corporation  possessed  of  any  money,"  &c., 
of  the  debtor,  it  was  held  that  a  toiV7i  might  be  garnish ed.^  In 
Connecticut,  where  the  statute  provides  that  "  debts  due  from 
any  person  to  a  debtor,"  may  be  attached,  the  same  view  was 
entertained  as  to  the  same  description  of  corporation  ;3  though  in 
that  State  it  had  been  previously  held  that  a  county  could  not  be 
charged  as  garnishee.*  This  decision,  however,  was  stated  to 
have  rested  on  the  position  that  a  county  could  not  contract  a 
debt  for  which  an  action  would  lie  against  it,  and  was  held  not 
to  be  inconsistent  with  the  views  which  controlled  the  court  in 
sustaining  the  garnishment  of  a  town.^  In  Massachusetts,  under 
a  statute  providing  that  "anj^  person  or  corporation  may  be  sum- 
moned as  trustee  of  the  defendar»t,"  it  was  held,  that  a  county 
might  be  garnished  in  respect  of  compensation  due  to  a  messen- 
ger in  charge  of  its  court-house,  under  appointment  of  the  county 
commissioners,  at  a  fixed  salary  ;  the  compensation  being  due  by 
contract,  and  the  law  of  that  State  declaring  that  each  county 
"  shall  continue  a  body  politic  and  corporate  for  the  following 
purposes  :  to  sue  and  be  sued,  .  .  .  and  to  make  necessary  con- 
tracts, and  do  necessary  acts  in  relation  to  the  property  and 
concerns  of  the  county."  ^  In  Iowa,  an  incorporated  city  was 
charged  as  garnishee,  for  money  due  to  a  defendant  for  public 
work  done  by  him  for  the  city.''    In  Rhode  Island,  under  a  statute 

1  Staples  V.  Staples,  4  Maine,  532  ;  e  Adams  v.  Tyler,  121  Mass.  380. 
Woodbridge  y.  Morse,  5  New  Hamp.  519  ;  "^  Wales  v.  Muscatine,  4  Iowa,  302. 
Coburn  v  Ansart,  3  Mass.  319;  Thayer  In  Kentucky,  in  a  proceeding  in  chan- 
r.  Sherman,  12  Ibid.  441 ;  Riley  y.  Hirst,  eery  in  favor  of  a  judgment  creditor, 
2  Penn.  State,  346 ;  Mann  v.  Buford,  3  who  could  not  make  his  judgment  by 
Alabama,  312 ;  Tucker  v.  Butts,  6  Geor-  execution,  it  was  held,  that  a  sum  due 
gia,  580.  from  a  city  to  one  of  its  officers  might 

2  Whidden  v.  Drake,  5  New  Hamp.  13.  be  decreed  to   be  paid  to  the   creditor, 

3  Bray  v.  Wallingford,  20  Conn.  416.  where  the  amount  had,  by  the  city  au- 

*  Ward  V.  Hartford,  12  Conn.  404.  thorities,  been  ordered  to  be  paid  to  the 

*  Bray  v.  Wallingford,  20  Conn.  416.        officer,  and  was,  when  the  bill  was  filed, 

[432] 


CHAP.  XXII.]      HOLDS   DEFENDANT'S   PROPERTY. 


516 


authorizing  all  corporations,  unless  otherwise  provided,  to  sue  and 
be  sued,  and  be  garnished,  a  city  was  charged  as  garnishee  on 
account  of  money  due  from  it  to  a  member  of  its  police  force.^ 
In  Vermont,  on  the  contrary,  it  was  held,  that  a  town  was  not 
subject  to  garnishment ;  2  in  Pennsylvania,  Maryland,  Georgia, 
Alabama,  Tennessee,  Missouri,  Wisconsin,  and  Illinois,  that  a  city 
could  not  be  charged  as  garnishee  ;  ^  in  Minnesota  and  Arkansas, 


subject  immediately  to  his  demand. 
Speed  V.  Brown,  10  B.  Monroe,  108. 
And  in  Missouri  a  bill  in  equity  was  sus- 
tained against  an  absconded  debtor,  and 
money  in  a  city  treasury  was  subjected 
to  the  payment  of  his  debt ;  though  in 
the  attachment  law  the  garnishment  of 
a  municipal  corporation  was  expressly 
prohibited.  Pendleton  v.  Perkins,  49 
Missouri,  565. 

1  Wilson  V.  Lewis,  10  Riiode  Island, 
285. 

-  Bradley  v.  Richmond,  6  Vermont,  121. 

3  Erie  v.  Knapp,  29  Penn.  State,  173  ; 
Greer  v.  Rowley,  1  Pittsburgh,  1 ;  Balti- 
more V.  Root,  8  Maryland,  95 ;  McClellan 
V.  Young,  54  Georgia,  399  ;  Mobile  v.  Row- 
land, 26  Alabama,  498 ;  Parsons  v.  Mc- 
Gavock,  2  Tennessee  Ch'y,  581 ;  Mem- 
phis V.  Laski,  9  Heiskell,  511 ;  Hawthorn 
V.  St.  Louis,  11  Missouri,  59 ;  Fortune 
V.  St.  Louis,  23  Ibid.  239;  Burnham 
V.  Fond  du  Lac,  15  Wisconsin,  193  ;  BuflP- 
ham  V.  Racine,  26  Ibid.  449.  In  Merwin 
V.  Chicago,  45  Illinois,  133,  the  court 
thus  stated  the  grounds  of  its  decision : 
"  The  question  has  been  often  before  the 
American  courts,  and  although  the  deci- 
sions are  not  uniform,  in  a  large  majority 
of  tlie  cases  it  has  been  held  that  the 
writ  would  not  lie.  ...  It  must  be  de- 
cided as  a  question  of  public  policy. 
These  municipal  corporations  are  in  the 
exercise  of  governmental  powers  to  a 
very  large  extent.  They  control  pecun- 
iary interests  of  great  magnitude,  and 
vast  numbers  of  human  beings,  wlio  are 
more  dependent  on  the  municipal,  for 
the  security  of  life  and  property,  than 
they  are  on  eitlier  the  State  or  the  fed- 
eral government.  To  permit  the  great 
public  duties  of  this  corporation  to  be 
imperfectly  performed,  in  order  that  in- 
dividuals may  tiie  better  collect  their 
private  debts,  would  be  to  prevent  the 
great  object  of  its  creation. 


"  That  its  efficiency  for  purposes  of 
government  would  be  impaired  by  hold- 
ing it  liable  to  garnishment,  cannot  be 
doubted.  A  large  and  growing  city  like 
Chicago,  must  constantly  have  hundreds 
of  persons  in  its  employment,  and  if  the 
city  cannot,  at  short  intervals,  make  a 
settlement  of  these  multitudinous  ac- 
counts, but  is  liable  to  be  drawn  into 
court  at  the  suit  of  every  creditor  of  its 
numerous  employees,  it  will  not  only  be 
engaged  in  much  expensive  and  vexa- 
tious litigation,  in  which  it  has  no  inter- 
est ;  but,  if  unable  to  safely  pay  its  em- 
ployees and  contractors,  it  may  lose  the 
services  of  persons  that  may  be  of  much 
value.  We  understand,  however,  the 
counsel  for  the  appellant  to  concede,  that 
money  due  municipal  officers,  agents,  or 
contractors,  is  not  liable  to  garnishment ; 
but,  it  is  insisted,  if  the  city  had  been 
required  to  answer,  the  alleged  indebted- 
ness, in  the  present  case,  would  not  have 
fallen  in  either  of  these  classes.  But,  in 
our  opinion,  the  city  should  not  be  sub- 
jected to  this  species  of  litigation,  no 
matter  what  may  be  the  character  of  its 
indebtedness.  If  we  hold  it  must  answer 
in  all  these  cases,  and  the  exemption 
from  liability  be  allowed  to  depend  in 
each  case  upon  the  character  of  the  in- 
debtedness, we  still  leave  it  liable  to  a 
vast  amount  of  litigation  in  which  it  has 
no  interest,  and  obliged  to  spend  the 
money  of  the  people  and  the  time  of  its 
officials  in  the  management  of  matters 
wholly  foreign  to  the  object  of  its  crea- 
tion. A  municipal  corporation  cannot 
be  properly  turned  into  an  instrument  or 
agency  for  the  collection  of  private  debts. 
It  exists  simply  for  the  public  welfare, 
and  cannot  be  required  to  consume  the 
time  of  its  officers  or  the  money  in  its 
treasury  in  defending  suits,  in  order  that 
one  private  individual  may  the  better 
collect  a  demand  due  from  another.    A 


28 


[433J 


§  516  a  CAPACITY  IN   WHICH   GARNISHEE       [CHAP.  XXII. 

that  a  county  cannot  be  garnished  ;  ^  in  Ahibama,  that  incorpor- 
ated commissioners  of  public  schools  were  a  public  or  municipal 
corporation,  and  could  not  be  garnished  ;  ^  and  in  the  District  of 
Columbia,  that  the  District  cannot  be  charged  as  garnishee  of  one 
of  its  officers  on  account  of  salary  due  him.^  Thus  the  question 
stands,  so  far  as  the  adjudications  are  concerned.  The  argument 
in  favor  of  holding  such  bodies  as  garnishees,  is  derived  from  the 
policy  of  the  law  which  subjects  all  of  a  debtor's  property  to  the 
payment  of  his  debts  ;  while  the  adverse  argument  is  based  on 
the  inconvenience  and  impolicy  of  interfering  with  the  operations 
of  municipal  bodies,  by  drawing  them  into  controversies  in  which 
they  have  no  concern,  and  diverting  the  public  moneys  from  the 
channel  in  which  by  the  acts  or  ordinances  of  the  corporation 
they  are  required  to  flow.  The  weight  of  authority  is  manifestly 
against  the  proceeding,  so  far  as  inferior  municipal  organizations 
are  concerned. 

In  this  connection  may  properly  be  mentioned  a  case  which 
arose  in  Louisiana,  where  it  was  attempted  to  subject  to  attach- 
ment taxes  due  from  individuals  to  a  municipal  corporation.  On 
high  principles  of  public  policy,  it  was,  in  a  learned  and  elab- 
orate opinion,  held  that  the  proceeding  was  unauthorized  and  in- 
admissible.'^ And  it  was  so  ruled  in  Tennessee,  where  the  taxes 
were  in  the  hands  of  the  collector." 

§  516  a.  Every  consideration  adverse  to  subjecting  a  municipal 
corporation  to  garnishment,  operates  with  greatly  increased  force 
against  the  garnishment  of  one  of  the  United  States.  Of  course, 
no  State  can  be  sued  without  its  own  consent,  signified  by  its 

private  corporation  must  assume  the  ^  Derr  v.  Lubey,  1  Mac  Arthur,  187. 
same  duties  and  liabilities  as  private  in-  *  Egerton  v.  Third  MunicipaHty,  1 
dividuals,  since  it  is  created  for  private  Louisiana  Annual,  435.  Sed contra,  Smoot 
purposes.  But  a  municipal  corporation  v.  Hart,  33  Alabama,  (39,  where,  under  a 
is  a  part  of  the  government.  Its  powers  statute  providing  that  "money  in  the 
are  held  as  a  trust  for  the  common  good,  hands  of  an  attorney  at  law,  sheriff,  or 
It  should  be  permitted  to  act  only  with  other  officer  may  be  attached,"  it  was 
reference  to  that  object,  and  sliould  not  held,  that  moneys  in  the  hands  of  a  mar- 
be  subjected  to  duties,  liabilities,  and  shal  of  a  city,  received  in  payment  of 
expenditures,  merely  to  promote  private  taxes  and  fines,  might  be  reached  by 
interests  or  private  convenience."  garnishment   of  the    marshal  in   a  suit 

1  McDougal  V.  Hennepin    County,  4  against  the  city. 

Minnesota,  184;  Boone  County  v.  Keck,  °  Moore  v.   Chattanooga,  8  Heiskell, 

31  Arkansas,  387.  850. 

2  Clark  V.  Mobile   School  Com'rs,  36 
Alabama,  621. 

[434] 


CHAP.  XXII.]      HOLDS   DEFENDANT'S   PROPEETY.  §  516  a 

own  statute  law.^  As  we  have  seen,^  garnishment  is  a  suit. 
Therefore  a  State  cannot  be  garnished  without  its  own  consent, 
so  signified.  This  consent  is  not  signified  by  the  insertion  in  the 
State's  constitution  of  a  requirement  upon  the  legislature  to 
direct,  by  law,  in  what  courts  and  in  what  manner  suits  might 
be  commenced  against  the  State ;  but  such  law  must  be  enacted. 
And  even  where  a  State  has  provided  b}''  law  for  itself  being  sued, 
it  cannot  be  charged  as  garnishee  of  one  of  its  officers,  in  respect 
of  the  salary  due  him.^  And  this  was  so  held  in  Georgia,  as  to 
the  superintendent  of  a  railroad  which  was  owned  entirely  by 
the  State  ;  notwithstanding  the  legislature  had  by  law  authorized 
suits  for  damages  to  be  instituted  against  the  road,  and  prescribed 
how  process  should  be  served  upon  it."*  And  parties  will  not  be 
allowed  to  evade  the  inhibition  of  suing  a  State,  by  ignoring  the 
State  in  their  suit,  and  proceeding  directly  against  the  public 
officer  having  the  custody  of  the  money  sought  to  be  reached.^ 
Thus,  it  was  attempted,  in  Tennessee,  to  reach  the  salary  of  the 
State  Treasurer,  by  garnishment  in  chancery  of  the  State  Comp- 
troller, whose  official  duty  it  was  to  issue  his  warrant  for  the  sal- 
ary ;^  and  in  Kentucky,  to  reach  the  salary  due  from  the  State 
to  a  public  school  teacher,  by  garnishment  of  the  school  commis- 
sioner, whose  duty  it  was  to  pay  the  teacher ; '  and  it  was  held 
that  such  proceedings  were  not  admissible.  And  the  same  view 
was  taken  in  Virginia  and  Tennessee,  when  it  was  sought,  in  the 
former,  by  garnishment  of  the  State  Treasurer,  and  in  the  latter 
the  State  Comptroller,  to  subject  to  attachment  certain  bonds  de- 
posited with  the  State  by  a  foreign  insurance  company,  to  enable 
it  to  do  business  there  ;  ^  and  in  Kentucky  and  Louisiana,  when 
it  was  attempted,  by  garnishing  the  State  Auditor  and  Treasurer, 
to  attach  certain  money  ordered  by  the  legislature  to  be  paid  to 
an  individual.^  Clearly,  then,  the  absolute  immunity  of  a  State 
from  garnishment,  direct  or  indirect,  unless  with  its  own  consent, 

1  Briscoe  v.   Bank,    11    Peters,  259;  ■  Tracy  y.  Hornbuckle,  8  Bush,  336. 
Beers  v.  Arkansas,  20  Howard  (S.  C.)          ^  RoUo  w.  AnJes  Ins.  Co.,  23  Grattan, 
627.  509 ;  Pennebaker  v.   Tomllnson,  1    Ten- 

2  Ante,  §  452.  nessee  Ch'y,  111. 

3  McMeekin  v.  State,  9  Arkansas,  653.  **  Divine   v.    Harvie,    7  Monroe,  439  ; 
*  Dobbins  v.   O.  &  A.  11.  11.  Co.,  37     Wild  v.  Fergu.>on,  23  Louisiana  Annual, 

Georgia,  240.  752.     See  Spalding  v.  Imlay,  1  Root,  551. 

5  Tracy  v.  Iloriibuckle,  8  Bush,  336. 

*>  Bank    of   Tennessee    v.   Dibrell,   3 
Sneed,  379. 


§  516  h         CAPACITY  IN  WHICH   GAKNISHEE,  ETC.      [CHAP.  XXH. 

expressed  by  law,  must  be  considered  as  completely  established. 
This  doctrine  was  applied  in  Georgia,  in  a  case  where  it  was 
sought,  through  process  issued  out  of  a  court  of  that  State,  while 
in  insurrection  against  the  United  States,  to  charge  an  agent  of 
the  Confederate  States,  in  garnishment,  as  a  debtor  of  the  Bank 
of  Louisiana,  on  the  ground  that  he  had  in  his  possession  a  cer- 
tain amount  of  gold  coin,  which  that  bank,  in  order  to  save  it 
from  capture  by  the  United  States,  had  sent  from  New  Orleans 
to  Georgia,  where  it  was  seized  by  the  Confederate  authorities, 
and  by  them  placed  in  the  garnishee's  hands,  as  agent.  As  those 
authorities  were  a  de  facto  government,  though  illegal,  it  was 
held,  that  the  rule  applied,  and  that  the  agent  could  not  be 
charged  in  respect  of  the  gold  coin  which  was,  when  he  was 
garnished,  in  his  hands.^ 

§  516  b.  Though  a  municipal  corporation  be,  by  express  law, 
exempt  from  garnishment,  it  may  waive  the  exemption,  and  sub- 
mit itself  to  liability  as  garnishee.  And  where  it  appears  and 
answers  without  claiming  the  exemption,  and  at  the  trial  of  the 
question  of  its  indebtedness  to  the  defendant,  it  raises,  for  the  first 
time,  the  question  of  its  exemption,  it  will  be  held  to  be  estopped 
from  that  defence.^ 

1  Wilson  V.  Bank  of  Louisiana,  65  Georgia,  98. 
'■^  Clapp  V.  Davis,  25  Iowa,  315. 

[436]     . 


CHAP,  xxin.]        garnishee's  liability,  etc. 


§517 


CHAPTER   XXIII. 


THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  PREVIOUS  CON- 
TRACTS TOUCHING  THE  DEFENDANT'S  PROPERTY  IN  HIS 
HANDS. 

§  517.  The  liability  of  a  garnishee  in  respect  of  property  of  a 
defendant  in  his  hands,  is  to  be  determined  ordinarily  by  his  ac- 
countability to  the  defendant  on  account  of  the  property.  If  by 
any  pre-existing  bond  fide  contract  that  accountability  have  been 
removed,  or  modified,  it  follows  that  the  garnishee's  liability  is 
correspondingly  affected.  For  it  is  well  settled  that  garnishment 
cannot  have  the  effect  of  changing  the  nature  of  a  contract  be- 
tween the  garnishee  and  the  defendant,  or  of  preventing  the 
garnishee  from  performing  a  contract  with  a  third  person.  Any 
other  doctrine  would  lead  to  mischievous  results.^ 


1  The  doctrine  thus  stated  was  cited, 
in  terms,  and  adopted  by  the  Court  of 
Appeals  of  Maryland,  in  Baltimore  & 
Ohio  R.  R.  Co.  V.  Wheeler,  18  Maryland, 
372,  where  it  was  attempted  to  charge 
that  company  as  garnishee,  in  respect  of 
moneys  received  by  it  on  account  of  the 
Central  Ohio  Railroad  Company.  The 
roads  of  these  two  companies  terminated 
opposite  to  each  other  on  the  banks  of 
the  Ohio  River,  and  an  arrangement  ex- 
isted between  the  two  companies  for 
"  through  "  transportation  of  goods  and 
passengers,  by  the  transfer  thereof  from 
one  road  to  the  other;  each  company 
receiving  the  fare  or  toll  due  for  the  other 
over  both  roads.  In  this  way  there  were 
mutual  accounts  to  be  settled  between 
the  companies,  for  the  receipts  of  each 
on  the  other's  behalf;  which  were  settled 
monthly,  the  balances  being  always  in 
favor  of  the  Baltimore  &  Ohio  Company. 
The  court  held,  that  under  such  circum- 
stances, moneys  received  by  that  com- 
pany for  the  other  were  not  subject  to 
attachment,  unless,  upon  a  settlement  of 
accounts  between  them,  there  should  be 


found  a  balance  in  favor  of  the  latter ; 
and  while  the  arrangement  existed  be- 
tween them,  as  stated,  it  could  not  be 
broken  up  by  an  intervening  attachment. 
The  same  doctrine,  in  efiFect,  was  previ- 
ously enforced  by  the  same  court,  in  Poe 
V.  St.  Mary's  College,  4  Gill,  499.  See 
Troxall  v.  Applegarth,  24  Maryland,  163. 
In  Connecticut  an  insurance  company 
was  garnished,  in  a  suit  against  a  de- 
fendant who  held  a  policy  of  insurance 
issued  by  the  company,  under  which  a 
loss  had  occurred.  One  of  the  conditions 
of  the  policy  was,  "  that  the  assured 
shall,  if  required,  submit  to  an  examina- 
tion under  oath  by  any  person  appointed 
by  the  company,  and  if  deemed  necessary 
by  the  company,  to  a  second  examination, 
and  subscribe  to  such  examination  when 
reduced  to  writing ;  and  shall  produce 
his  books,"  &c. ;  and  that  "until  such 
proofs,  declarations,  and  certificates  are 
produced,  and  examinations  and  ap- 
praisals permitted,  the  loss  shall  not  be 
payable."  It  appeared  that  when  the 
defendant's  proofs  of  loss  were  received 
by  the  company,  it  was  not  satisfied 
[437] 


§  517  garnishee's   liability  [chap.  XXIII. 

Therefore,  where  goods  were  shipped  by  the  defendant  to  the  gar- 
nishee, and  a  bill  of  exchange  was  drawn  on  the  garnishee,  which, 
before  the  goods  were  received,  was  presented,  and  he  refused  to 
accept  it,  and  it  was  returned  to  the  drawers  ;  and  soon  afterwards 
the  goods  arrived,  and  the  garnishee  called  on  the  persons  who 
had  presented  the  bill  to  him,  and  told  them  if  they  would  get 
the  bill  back  he  would  pay  it ;  and  after  this  promise  he  was  sum- 
moned as  garnishee  of  the  shippers  of  the  goods,  and  in  his  an- 
swer admitted  the  possession  of  the  defendant's  goods,  but  set 
up  his  promise  to  pay  the  bill ;  the  promise  was  held  to  be  bind- 
ing on  him,  and  to  give  him  a  lien  on  the  goods,  in  virtue  of  which 
he  was  entitled  to  retain  them  for  his  indemnity.^  So,  where  the 
garnishee  had  goods  of  the  defendant  in  his  hands  on  consign- 
ment, and,  at  the  defendant's  request,  agreed  to  pay  to  a  third 
person  the  amount  of  a  bill  of  exchange  of  the  defendant  which 
had  been  protested,  and  which  that  third  person  had  accepted  for 
the  honor  of  one  of  the  indorsers  thereon,  and  after  making  this 
agreement  he  was  garnished ;  it  was  held,  that  his  agreement  was 
binding  on  him,  and  that  he  was  entitled  to  retain  out  of  the 
proceeds  of  the  goods  the  amount  of  the  bill  which  he  had  under- 
taken to  pay .2  So,  where  A.  delivered  goods  to  B.,  with  direc- 
tions to  sell  the  same  on  his  arrival  in  New  Orleans,  and  pay  the 

therewith,  but  claimed  that  tlie  state-  But  the  garnishees  have  not  been  in 
ments  therein  were  not  true,  and  imme-  fault.  Having  used  due  diligence  to 
diately  required  that  the  assured  should  notify  the  assured  that  they  required  the 
submit  to  an  examination  ;  and  that  the  performance  of  this  stipulation,  they 
garnishee  used  due  diligence  to  notify  clearly  ought  not  to  be  held  to  have 
the  assured  of  such  requirement,  but  was  waived  its  performance.  If  the  assured 
unable  to  find  him,  and  tliat  he  had  not  has  intentionally  absented  himself  so 
submitted  to  such  examination.  The  that  he  cannot  be  notified  that  perform- 
court  held  the  garnishee  not  chargeable,  ance  of  the  stipulation  is  required,  he 
and  said :  "  Now  as  the  plaintiffs  stand  should  be  held  to  have  had  notice, 
upon  the  right  of  the  assured,  and  are  in  And  if  for  any  cause,  whether  by  his 
no  better  condition  than  he  would  be,  fault  or  otherwise,  he  cannot  be  notified, 
were  he  now  prosecuting  this  suit  for  the  that  may  be  his  misfortune,  or  the  mis- 
damages  caused  by  the  loss,  it  becomes  fortune  of  those  claiming  under  or  through 
important  to  determine  whether  the  stip-  him,  but  is  no  reason  for  treating  as  in- 
ulation  for  his  personal  examination  is  a  operative  an  important  stipulation  which 
condition  precedent  to  his  right  under  the  garnishees  saw  fit  to  require,  and  the 
the  policy.  The  plaintiffs  insist  that  it  assured  to  give,  as  a  condition  which 
is  not  such  a  condition  in  this  case,  be-  was  to  be  complied  with  before  there 
cause  it  does  not  appear  that  notice  that  could  be  any  obligation  to  pay  for  the 
a  personal  examination  was  required  has  loss."  See  Harris  v.  Phoenix  Ins.  Co.,  35 
ever  been  brought  home  to  the  assured.  Conn.  310  ;  Cliapin  v.  Jackson,  45  Indiana, 
If  this   were   so  in   consequence   of  the  153. 

fault    of    the    garnishees,    there    would  ^  Grant  v.  Sliaw,  16  Mass.  341. 

doubtless    be    force    in    the   suggestion.  '^  Curtis  v.  Norris,  8  Pick.  280. 
[438] 


CHAP.  XXIII.]    AS   AFFECTED   BY   PREVIOUS   CONTRACTS.         §  517 

proceeds  to  C.  D.  and  E.,  to  extinguish,  as  far  as  they  would  go, 
a  debt  he  owed  them.  On  his  arrival  in  New  Orleans,  B.  placed 
the  goods  in  the  hands  of  C.  D.  and  E.,  to  sell,  informing  thera 
of  A.'s  directions,  and  that,  in  conformity  thereto,  he  would  pay 
over  the  proceeds  to  them  ;  to  which  they  assented.  Before  the 
goods  were  sold  they  were  attached  by  a  third  party  as  the  prop- 
erty of  A. ;  and  it  was  held,  that  they  were  not  subject  to  such 
attachment,  because  the  promise  of  B.  to  C.  D.  and  E.  bound 
him  to  pay  the  proceeds  to  them,  and  A.  could  not,  by  a  change 
of  his  determination,  have  compelled  him  to  pay  the  money  to 
any  other  person.^  So,  where  the  garnishee  had,  before  the  gar- 
nishment, in  a  transaction  with  the  defendant,  purchased  from 
him  goods,  under  an  agreement,  that,  in  consideration  of  the 
sale  of  the  goods  to  him,  he  would  pay  off  a  mortgage  on  land 
which  the  defendant  had  previously  executed,  which  he  did  pay 
after  the  garnishment ;  it  was  decided,  that  as  the  defendant 
could  not  lawfully,  by  any  interference,  prevent  the  garnishee 
from  taking  up  the  mortgage,  so  neither  could  the  plaintiff  by 
the  operation  of  the  attachment.^  So,  where  the  garnishee  had 
received  for  the  defendant  an  order  on  a  town  treasury  for  a  cer- 
tain sum,  having  previous  to  its  receipt  agreed  with  the  defendant 
and  a  third  person  to  whom  the  defendant  was  indebted,  to  de- 
liver the  order,  when  received,  to  that  third  person,  and  imme- 
diately after  receiving  the  order  he  was  garnished  ;  the  court  held, 
that  he  was  bound  to  deliver  it  according  to  his  promise,  and  that 
the  garnishment  did  not  relieve  him  from  that  obligation.^  So, 
where  the  garnishee  had,  previous  to  the  garnishment,  received 
from  the  defendant  a  sum  of  money  and  a  note,  in  consideration 
whereof  he  agreed  to  enter  a  tract  of  land  at  the  land-office  for 
the  defendant,  and  in  pursuance  of  that  agreement  he  had  filed  a 
land-warrant  in  said  office,  to  be  located  for  the  defendant ;  and 
pending  some  delay  in  making  the  location,  he  was  summoned  as 
garnishee  of  the  party  from  whom  he  had  received  the  money, 
and  thereupon  desisted'from  any  further  effort  to  have  the  loca- 
tion made  ;  it  was  held,  that  he  could  not  be  charged.*  So,  where 
a  garnishee  disclosed  that  certain  creditors  of  the  defendants 
having  attached  their  property,  it  was,  after  the  attachment,  in 

'  Armor  i'.  Cockhurn,  4  Martin,  n.  8.  ^  Owen  v.  Estes,  5  Mass.  330. 

067  ;  Cutters  v.  Baker,  2  Louisiana  An-  »  Mayhevv  v.  Scott,  10  Pick.  54. 

nual,   272  ;    Oliver  v.   Lake,   3  Ibid.   78 ;  <  Lundie    v.  Bradford,    2G    Alabama, 

Burnside  v.  McKinley,  12  Ibid.  505.  512. 

[439] 


§  517  garnishee's   liability  [chap.  XXIII. 

pursuance  of  a  written  agreement,  signed  by  the  plaintiffs,  the 
defendants  and  the  garnishee,  put  into  the  garnishee's  hands  to 
sell,  and  appl}^  the  proceeds  to  the  satisfaction  of  the  executions 
that  might  be  recovered,  in  the  order  of  the  attachments  ;  and 
after  the  agreement  was  made,  but  before  the  property  came  into 
his  hands,  he  was  garnished  ;  and  after  the  garnishment  he  re- 
ceived the  property  and  disposed  of  it  according  to  the  agreement: 
the  garnishee  was  not  charged  ;  the  court  considering  that  the 
garnishment  "  did  not  relieve  him  of  his  obligation  to  perform  the 
contract  into  which  he  had  entered.  He  received  property  of 
the  defendants,  it  is  true,  but  it  was  upon  the  express  trust  to 
dispose  of  it  and  discharge  the  liens  upon  it.  He  was,  therefore, 
the  agent  of  the  creditors,  to  sell  the  property  and  account  for 
the  proceeds  to  them,  with  the  assent  of  the  defendants."  ^  So, 
where  a  garnishee  admitted  the  possession  of  a  promissory  note 
payable  to  the  defendant,  but  alleged  that  the  note  had  been  given 
to  him  for  the  purpose  of  paying  a  certain  judgment  on  which  he 
was  security  for  the  defendant  for  a  stay  of  execution ;  he  was 
held  not  chargeable  in  respect  to  the  note.^  So,  where  money  in 
the  garnishee's  hands  was  deposited  with  him  by  the  defendant 
as  security  for  his  becoming  the  defendant's  bail.^  So,  where 
the  funds  in  the  garnishee's  hands  were  held  by  him  under  an 
agreement  with  the  defendant,  in  trust  to  defray  the  expenses 
of  certain  suits  in  which  the  latter  was  involved,  and  for  which 
the  garnishee  had  incurred  liability  to  the  full  extent  of  the 
funds.*  But  where  a  garnishee  resisted  liability  on  account  of 
money  of  the  defendant  in  his  hands,  upon  the  ground  that  he 
had  signed  certain  appeal  bonds  as  security  for  the  defendant, 
upon  which  he  had  been  sued,  and  judgment  obtained  against 
him  ;  but  he  failed  to  state  the  time  of  his  signing  the  bonds ; 
and  it  therefore  did  not  appear  but  that  they  might  have  been 
signed  after  he  was  garnished ;  his  liability  was  held  not  to  be 
discharged.^ 

In  Georgia,  goods  were  deposited  with"  a  warehouseman,  who 
gave  a  receipt  therefor,  engaging  to  deliver  them  to  the  holder 
of  the  receipt ;  and  he  was  summoned  as  garnishee  of  the 
party  who   made   the  deposit ;   and   after  the   garnishment   he 

1  Collins  V.  Brigham,  11  New  Hamp.  *  Trultt  v.  Griffin,  61  Illinois,  26. 
420.  5  McCoy   v.    Williams,   6   Illinois    (1 

2  Dryden  I".  Adams,  29  Iowa,  195.  Gilman),  584;   Grain  v.  Gould,  40  Ibid. 

3  Ellis  V.  Goodnow,  40  Vermont,  237.  239. 

[440] 


CHAP.  XXIII.]    AS    AFFECTED   BY   PREVIOUS   CONTRACTS.         §  518 

delivered  the  goods  to  a  third  party  holding  the  receipt,  to 
whom  they  had  been  sold  after  that  event ;  and  attempted 
to  avoid  liability  as  garnishee,  on  the  ground  that  his  receipt 
was  a  negotiable  instrument,  and  bound  him  to  deliver  the 
goods  to  anybody  to  whom  it  might  be  transferred  :  but  the 
court  held,  that  the  receipt  was  merely  evidence  of  a  contract  of 
bailment,  and  not  to  be  regarded  as  a  negotiable  security,  and 
that  the  delivery  of  the  goods  by  the  garnishee,  after  the  gar- 
nishment, was  in  his  own  wrong,  and  did  not  discharge  him  from 
liability.! 

§  518.  In  some  States,  statutory  authority  is  given  for  the 
garnishment  of  one  who  is  bound  by  contract  to  deliver  goods  or 
chattels  to  the  defendant ;  and  for  the  delivery  of  the  goods,  in 
such  case,  by  the  garnishee  to  the  officer  holding  the  execution, 
in  discharge  of  the  garnishee's  liability.  In  Massachusetts,  the 
statute  provided  that  "  when  any  person  is  chargeable  as  a 
trustee,  by  reason  of  any  goods  or  chattels,  other  than  money, 
which  he  holds,  or  is  bound  to  deliver  to  the  principal  defendant, 
he  shall  deliver  the  same,  or  so  much  thereof  as  may  be  neces- 
sary, to  the  officer  who  holds  the  execution,  and  the  goods  shall 
be  sold  by  the  officer,"  &c. ;  and  the  statute  further  provided  that 
"  when  any  person,  who  is  summoned  as  trustee,  is  bound  by  con- 
tract, to  deliver  any  specific  goods  to  the  principal  defendant,  at 
any  certain  time  and  place,  he  shall  not  be  compelled,  by  reason 
of  the  foreign  attachment,  to  deliver  them  at  any  other  time  or 
place."  Under  this  statute  one  was  garnished,  who  had  pur- 
chased from  the  defendant  a  building,  on  condition,  as  expressed 
in  the  bill  of  sale,  that  he  should  "  pay  for  the  building  in  writino- 
paper  at  market  price,  delivered  in  New  York  in  a  reasonable 
time  after  he  shall  receive  the  order  for  the  same."  The  court 
decided  that  as  the  goods  were  to  be  delivered  to  the  defendant 
at  a  place  out  of  that  State,  to  which  the  officer  had  no  authority, 
as  officer,  to  go  and  receive  the  goods,  the  law  did  not  apply .2 
Here,  it  will  be  observed,  the  garnishee  had  not  in  his  hands  any 
goods  or  effects  of  the  defendant ;  his  obligation  was  to  deliver 
goods  at  New  York,  which  would  not  become  the  defendant's 
property  until  delivered  to  him.  It  was,  therefore,  distinguisha- 
ble from  a  subsequent  case,  in  the  same  State,  of  the  garnishment 

1  Smith  V.  Picket,  7  Georgia,  104.  '-'  Clark  v.  Brewer,  6  Graj,  320. 

[441] 


§  0-20  garnishee's  liability  [chap,  xxiil 

of  an  express  company  in  Boston,  which  had  in  its  hands  in 
transitu  a  package  of  money  which,  as  a  common  carrier,  it  had 
a<;reed  to  deliver  to  the  defendant  at  Norwich,  Connecticut. 
The  court  decided  that  there  was  no  reason  why  a  common  car- 
rier shouhl  not  be  subjected  to  liability  as  a  garnishee,  and  that 
as  the  garnishee  had  money  of  the  defendant  in  its  hands  m  that 
State,  it  was  chargeable  though  the  money  was  deliverable  in  an- 
other State.^  In  Illinois,  however,  it  was  held,  that  a  railroad 
company  could  not  be  charged  as  garnishee  in  respect  of  prop- 
erty which  it  was  transporting,  and  which  was  not  at  the  time 
of  the  garnishment  in  the  county  where  the  writ  issued  ;  and  the 
court  expressed  grave  doubts  as  to  the  liability  of  such  a  com- 
pany in  such  a  case  under  any  circumstances.^ 

§  519.  The  contract  in  relation  to  the  effects  in  the  garnishee's 
hands,  which  will  affect  his  liability,  must  not  only  have  been 
entered  into  before  the  garnishment,  but  it  must  be  his  contract, 
and  not  that  of  another.  Thus,  A.  sued  B.,  and  summoned  C. 
as  garnishee  ;  and  at  the  time  of  instituting  the  suit,  an  agree- 
ment was  entered  into  between  A.  and  B.,  as  to  the  disposition 
which  should  be  made  of  the  funds  in  the  garnishee's  hands, 
when  recovered.  C,  having  knowledge  of  the  terms  of  that 
agreement,  without  waiting  for  the  action  of  the  court  as  to  his 
liability  as  garnishee,  paid  over  the  money  in  his  hands  to  the 
persons  to  whom,  by  the  agreement,  it  was  to  be  paid  when  re- 
covered, and  set  up  this  payment  as  a  discharge  of  his  liability  as 
a  garnishee.  The  court  held,  1.  That  the  contract  between  A. 
and  B.  was  executory,  and  to  operate  only  when  the  funds 
should  be  recovered  from  the  garnishee ;  and  2.  That  the  pay- 
ment was  unauthorized,  and  could  not  operate  to  discharge  the 
garnishee  ;  and  he  was  accordingly  charged.^ 

§  520.  A  case  occurred  in  New  Hampshire,  where  A.  and  B. 
made  a  wager  on  the  result  of  a  Presidential  election,  and  depos- 
ited the  money  in  the  hands  of  C,  to  be  held  by  him  until  the 
4th  of  March,  1841,  on  which  day,  in  one  event  of  the  election, 
l)Oth  sums  were  to  be  paid  to  A.,  and  in  the  other  event,  to  B. 
In  December,  1840,  C.  was  summoned  as  garnishee  of  A.,  and 

1  Adams  v.  Scott,  104  Mass.  164.  3  Webster  v.  Randall,  19  Pick.  13. 

'^  Illinois  C.  R.  R.  Co.  v.  Cobb,  48  Illi- 
nois, 402. 

[44-J] 


CHAP.  XXTII.]    AS   AFFECTED   BY   PREVIOUS    CONTRACTS.         §  520 

the  question  was,  whether  the  money  in  his  hands  received  from 
A.,  could  be  subjected  to  the  attachment,  notwithstanding  the 
ao-reement  of  wager.  The  court  mooted,  but  did  not  deem  it 
necessary  to  decide,  the  question  of  the  legality  of  the  wager ; 
and  held,  that  a  creditor  of  A.  could  not  interfere  with  the  agree- 
ment by  taking  the  money  out  of  the  hands  of  C,  without  A.'s 
consent,  nnless  A.  was  in  insolvent  or  embarrassed  circumstances.^ 
The  doctrine  here  advanced  can  hardly  be  deemed  consistent 
with  public  policy  and  sound  morals.  The  better  view  is  that 
taken  in  Massachusetts,  holding  all  wagers  on  the  result  of  popu- 
lar elections  null  and  void,  and  the  money  in  the  hands  of  the 
stake-holder  a  mere  naked  deposit,  respecting  which  the  agree- 
ment to  pay  it  over  to  one,  according  to  the  result  of  the  pending 
election,  is  inoperative  and  void  ;  and  that,  by  implication  of  law, 
the  money  is  deposited  to  the  use  of  the  depositors  respectively, 
and  the  share  of  each  is  subject  to  attachment  for  his  debts,  at 
any  time  before  it  is  actually  paid  over  to  the  winning  party .^ 
After  it  is  paid  over,  however,  the  winner  cannot  be  charged  as 
garnishee  of  the  loser  in  respect  thereof.^ 

1  Clark  V.  Gibson,  12  New  Hamp.  386.    See  Wimer  v.  Pritchartt,  16  Missouri,  252. 

2  Ball  V.  Gilbert,  12  Metcalf,  397.    See  Eeynolds  v.  McKinney,  4  Kansas,  94. 

3  Speise  v.  McCov,  6  Watts  &  Sargeant,  485. 

[443] 


§  523  garnishee's  liability  as  affected    [chap.  XXIV. 


CHAPTER   XXIV. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  A  PREVIOUS 
ASSIGNMENT  OF  THE  DEFENDANT'S  PROPERTY  IN  HIS  HANDS, 
OR  BY  ITS  BEING  SUBJECT  TO  A  LIEN,  MORTGAGE,  OR 
PLEDGE. 

§  521.  A  VERY  common  result  of  garnishment  is,  to  bring  the 
attachment  in  conflict  with  previous  transfers  of  the  defendant's 
property  found  in  the  hands  of  the  garnishee,  or  with  existing 
liens  upon  it.  Hence  have  arisen  numerous  decisions  concerning 
the  effect  of  garnishment  in  such  cases.  This  branch  of  the 
subject  will  be  considered  in  reference  to  the  following  heads : 
I.  Assignments,  legal  and  equitable  ;  H.  Liens  ;  III.  Mortgages 
and  Pledges. 

§  522.  I.  Assignments,  legal  and  equitable.  Where  a  garnishee 
holds  property  which  once  belonged  to  the  defendant,  but  which, 
before  the  garnishment,  was,  for  a  valuable  consideration,  sold  to 
the  garnishee,  the  attachment  cannot  reach  it.  It  is  no  longer 
the  property  of  the  defendant,  but  of  the  garnishee.  In  any  such 
case,  if  the  assignment  be  in  writing,  and  bear  date  before  the 
attachment,  and  there  be  nothing  to  repel  the  presumption  that  it 
bears  its  true  date,  it  will  be  effectual  as  against  the  attachment, 
and  no  evidence  of  its  delivery,  or  of  its  receipt  and  acceptance 
by  the  assignee,  before  service  of  the  attachment,  is  necessary  to 
perfect  it  and  give  it  priority.^ 

§  523.  Where  a  garnishee  sets  up  title  in  himself  to  the  prop- 
erty in  his  hands,  it  is  entirely  competent  for  the  plaintiff  to 
impeach  that  title,  on  account  of  fraud  or  other  invalidating  cir- 
cumstance, and  thereby  show  that  the  property  is  still  liable  for 
the  defendant's  debts.^  And  in  Louisiana,  he  may  call  upon  the 
assignee,  whether  he  be  the  garnishee  himself  or  a  third  party, 

1  Sandidge  v.  Graves,  1  Patton,  Jr.  &  ^  Cowles  v.  Coe,  21  Conn.  220. 

Heath,  101. 

[444] 


CHAP.  XXIV.]         BY  ASSIGNMENTS   AND   LIENS.  §  523 

to  prove  the  consideration  of  the  assignment.  "  The  attaching 
creditor,"  observed  the  Supreme  Court  of  that  State,  "  cannot  be 
deprived  of  his  lien  and  the  right  resulting  from  it,  unless  by  a 
person  who  has  previously  acquired  the  property  of  the  thing  at- 
tached ;  and  if  the  validity  of  the  consideration  be  a  necessary 
ingredient  in  the  right  of  the  assignee,  the  proof  must  come  from 
him  who  alleges  the  assignment ;  for  his  opponents  cannot  prove 
a  negative.  It  is  clear  of  any  doubt,  that  it  is  a  hond  fide  assign- 
ment alone  which  can  be  successfully  opposed  to  the  attaching 
creditor;  and  if  proof  of  the  validity  of  the  consideration  could 
not  be  demanded,  this  would  be  tantamount  to  a  declaration  that 
a  fraudulent  or  collusive  assignment  might  have  that  effect."  ^ 
And  in  New  Hampshire,  it  was  declared  that  the  assignee,  in  or- 
der to  maintain  his  claim  against  the  attaching  plaintiff,  is  bound 
not  only  to  prove  his  claim  to  have  been  first  in  time,  but  also  to 
have  been  well  founded  in  legal  right ;  and  that  the  assignment 
was  not  merely  formal,  but  hond  fide ^  and  upon  sufficient  consid- 
eration.2  Hence,  where  the  firm  of  A.  &  Co.,  being  insolvent, 
placed  a  number  of  demands  in  their  favor  in  the  hands  of  B., 
for  collection,  in  order  that  he  might  take  charge  of  the  proceeds 
and  keep  them  out  of  the  reach  of  attachment,  and  pay  a  divi- 
dend out  of  them  to  such  of  A.  &  Co.'s  creditors  as  were  willing 
to  discharge  them  ;  and  B.  accepted  an  order  drawn  by  A.  &  Co., 
requesting  him  to  pay  the  money  which  he  might  collect,  to  the 
order  of  C,  one  of  the  firm ;  and  B.,  having  collected  a  part  of 
the  money,  lent  it  to  different  persons ;  and  was  afterward  sum- 
moned as  garnishee  of  A.  &  Co.,  at  a  time  when  he  had  nothing 
in  his  hands  but  some  of  the  demands  left  with  him  for  collec- 
tion, and  the  notes  which  he  had  taken  ;  and  after  the  garnish- 
ment, in  conformity  with  verbal  orders  from  C,  he  paid  a 
dividend  to  such  of  the  creditors  of  A.  &  Co.  as  were  willing  to 
give  a  discharge ;  it  was  held,  that  this  was  an  invalid  transfer  of 
property,  for  a  purpose  not  recognized  by  law,  and  void  against 
creditors ;  that  the  order  of  A.  &  Co.  to  pay  the  proceeds  of  the 
demands  to  C,  was  the  same  as  if  it  had  been  drawn  in  favor  of 
A.  &  Co. ;  and  that  the  fact  that  the  proceeds  had  been  lent  out 
and  notes  taken  therefor,  made  no  difference  as  to  the  liability  of 
B.,  as  garnishee  of  A.  &  Co.,  who  became  liable  for  the  money 

1  Maher  v.  Brown,  2  Louisiana,  492,  -  Giddings  v.  Coleman,  12  NewHamp. 

153. 

[445] 


§  524  garnishee's   liability   as   affected       [chap.  XXIV. 

received  b}'  him  immediately  upon  its  receipt,  and  could  not  avoid 
that  liability  by  lending  the  money  out;  and  therefore  he  was 
charged  as  garnishee  of  A.  &  Co.^  So,  where  A.  was  indebted 
to  B.,  and  B.  procured  C,  for  an  agreed  premium,  to  guarantee 
the  debt ;  and  afterwards  A.  failed,  and,  at  the  suggestion  of  B., 
but  without  any  knowledge  of  the  previous  guaranty,  made  an 
absolute  transfer  of  property  to  C,  to  secure  the  debt  to  B.,  and 
after  such  transfer  C.  was  garnished ;  the  court  held,  that  "  the 
conveyance,  instead  of  being  made  for  the  benefit  of  C,  was  evi- 
dently intended  for  the  security  of  B,  It  was  manifest  that  A., 
at  the  time  of  the  transfer,  had  no  knowledge  that  C.  had  guaran- 
teed the  payment ;  and  between  them  therefore  there  was  no 
privity,  and  no  contract  created  by  that  guaranty.  Had  C.  been 
called  upon  for  the  amount  of  the  note,  by  reason  of  his  separate 
stipulation,  the  payment  of  that  amount  would  not,  of  itself,  have 
given  him  a  right  of  action  against  A.  It  was  a  distinct  matter, 
collateral  to  the  note,  between  other  parties,  and  upon  another 
consideration.  There  being  therefore  no  consideration  moving 
from  C.  for  the  conveyance  of  the  property  in  question,  he  holds 
it  as  the  trustee  of  A.,  and  must  be  charged  as  such  in  this  ac- 
tion." ^  So,  where  a  surety  received  from  his  principal  property 
to  secure  him  against  his  liabilities,  and  the  principal  afterwards 
made  a  settlement  with  the  surety,  in  which  he  transferred  to  the 
surety  his  whole  interest  in  the  property  for  a  grossly  inadequate 
consideration,  the  settlement  was  held  to  be  fraudulent  against 
the  creditors  of  the  principal,  and  the  surety  was  charged  as  gar- 
nishee of  the  principal,  in  respect  of  the  property  received  by 
him.^  But  in  this  case,  as  well  as  another  in  Massachusetts,*  and 
one  in  New  Hampshire,^  where  property  was  found  in  the  gar- 
nishee's hands,  under  a  contract  that  was  fraudulent  as  to  cred- 
itors, but  the  garnishee,  before  he  was  summoned,  had,  bond  fide, 
paid  debts  of  the  defendant  to  an  amount  equal  to  the  value  of 
the  property  in  his  hands,  he  was  held  not  liable  in  respect  of  the 
property. 

§  524.  The  rule,  as  stated  in  the  preceding  section,  applies  to 
a  case  where  the  assignee  is  before  the  court,  and  in  a  position  to 
assert  his  rights,  and  to  be  called  upon  to  defend  them.     Where 

1  Hooper  y.  Hills,  9  Pick.  435.  *  Thomas  v.  Goodwin,  12  Mass.  140. 

^  Knight  V.  Gorham,  4  Maine,  492.  ^  Hutchins  v.  Sprague,  4  2s^ew  Hamp. 

3  Kipley  v.  Severance,  6  Pick.  474.  409. 
[446] 


CHAP.  XXIY.]         BY   ASSIGNMENTS    AND   LIENS.  §  525 

this  is  not  the  case,  it  is  not  admissible  to  charge  with  fraud  a 
transaction  to  which  he  was  a  party.  Thus,  where  a  garnishee 
answered,  and  admitted  having  made  a  note  to  the  defendant, 
which  he  stated  was  assigned  to  a  third  party  before  the  garnish- 
ment ;  and  the  plaintiff,  on  a  contest  of  the  answer,  offered  to 
prove  that  the  assignment  was  fraudulent;  it  was  held,  that  that 
question  could  not  be  tried  in  that  proceeding,  to  which  the  as- 
signee was  not  a  party  ;  for  the  judgment  of  the  court  establishing 
the  fraud  would  not  be  conclusive  upon  him  ;  and  if  not  thus  con- 
clusive, the  garnishee  might  be  subjected  to  a  double  recovery. ^ 

§  525.  In  determining  whether  the  property  has  in  fact  been 
assigned,  the  point  to  be  ascertained  is,  whether  the  supposed 
assignor  has  so  disposed  of  it  that  it  is  beyond  his  control.  A 
mere  direction  from  him  to  deliver  or  pay  it  to  the  supposed  as- 
signee, without  the  assignee's  knowledge  and  assent,  will  not  be 
considered  to  constitute  an  assignment,  as  against  an  attaching 
creditor  of  the  assignor.^  Thus,  where  A.  sent  to  B.  a  quantity  of 
gold-dust  to  be  sold,  and  directed  the  proceeds  to  be  paid  to  C,  a 
creditor  of  A.,  and  after  the  sale,  and  before  the  proceeds  were  paid 
over,  B.  was  summoned  as  garnishee  of  A. ;  it  was  held,  that  C.  had 
acquired  no  interest  in  the  proceeds,  but  they  still  were  the  prop- 
erty of  A.^  So,  where,  upon  a  consignment  of  goods  to  be  sold 
on  commission,  the  consignees  accepted  an  order  drawn  upon  them 
by  the  consignor,  by  which  they  were  requested  to  pay  to  his 
order,  in  thirty  days,  the  sum  of  one  thousand  dollars,  or  what 
might  be  due  after  deducting  all  advances  and  expenses ;  and 
after  the  acceptance,  but  before  the  goods  were  sold,  the  consignees 
were  summoned  as  garnishees  of  the  consignor;  it  was  decided  that 
the  order,  not  being  made  to  a  third  person,  could  not  operate  as 
an  assignment,  and  neither  was  it  a  negotiable  security ;  and 
therefore  the  garnishees  were  charged.*  So,  where  attorneys  at 
law  collected  money  in  a  suit  in  the  name  of  A.,  to  the  use  of 
B.,  and  were  summoned  as  garnishees  of  A.,  and  B.  disclaimed 

1  Simpson  v.  Tippin,  5  Stewart  &  For-  v.   Brownlee,  2    Speers,   519  ;    People   v. 

ter,  208.  Johnson,    14    Illinois,     342 ;     Dolsen    v. 

'^  Baker  v.  Moody,  1  Alabama,  315  ;  Brown,  13  Louisiana  Annual,  651  :  Rob- 
Clark  y.  Cilley,  3G  Ibid.  652;  Kelly  v.  ertson  v.  Scales,  Ibid.  545;  Connelly  i-. 
Koberts,  40  >;ew  York,  432.  Harrison,    16  Ibid.  41;  Hearn  r.  Foster, 

a  Briggs  V.  Block,   18  Missouri,  281 ;  21   Texas,  401  ;  Center  v.  McQuesten,  18 

Sproule   V.   McNulty,   7    Ibid.   62.      See  Kansas,  476. 
Brown  v.  Foster,  4   Cashing,  214;  State  *  Cushnian  v.  Ilaynes,  20  Pick.  132. 

[447] 


§  526  garnishee's   liability   as   affected       [chap.  XXIV. 

any  right  to  the  money,  they  were  charged.^  So,  where  goods 
were  shipped  by  A.  to  R.,  and  A.  afterwards  drew  a  draft  on  B., 
in  favor  of  a  third  party,  against  the  consignment,  which  draft 
B.  refused  to  accept,  but  expressed  a  willingness  to  pay  the 
amount  of  it  out  of  the  proceeds  of  the  consignment ;  such  ex- 
pression was  deemed  insufficient  to  give  the  holder  of  the  draft 
a  right  to  the  proceeds.^  So,  where  money  was  deposited  by  A. 
in  a  bank,  with  the  express  agreement  between  A.  and  the  bank 
that  the  deposit  was  made  and  received  to  pay  certain  specified 
checks  which  A.  had  drawn  or  would  draw ;  the  money  was  con- 
sidered to  be  A.'s,  and  the  bank  liable  therefor  as  garnishee,  until 
the  bank  had  paid,  or  promised  to  pay  it  on  the  checks.'^  So, 
where  A.  shipped  to  B.  five  bales  of  cotton ;  and  at  the  same 
time,  being  indebted  to  C,  wrote  to  him,  "  I  ship  three  bales  of 
cotton  for  you  to  B.  ;  sell  when  you  think  best,  and  credit  my 
note  with  the  amount ; "  it  was  held,  that  the  title  to  the  cotton 
had  not  passed  out  of  A.,  and  that  it  was  attachable  for  his  debt, 
by  garnishment  of  B.* 

§  526.  But  where  the  appropriation  of  the  property  is  made  by 
the  assignor  and  accepted  by  the  assignee,  the  particular  form  in 
which  the  thing  is  done  is  of  little  moment,  and  the  assignment 
will  be  sustained.  Thus,  certain  funds  were  placed  by  A.  in  the 
hands  of  B.,  for  the  purpose  of  paying  certain  drafts  drawn  upon 
the  fund,  and  the  holders  of  the  drafts  knew  that  the  fund  was 
so  placed  for  that  purpose,  and  assented  to  it,  by  presenting  their 
drafts,  and  receiving  each  a  pro  rata  payment  out  of  the  fund. 
It  was  then  attempted  to  reach  the  fund  in  the  hands  of  B.  by 
attachment  against  A. ;  but  the  court  held,  that  it  was  assigned 
to  B.  for  a  particular  purpose,  and  that  the  assent  of  the  holders 
of  the  drafts  having  been  given,  there  was  an  appropriation  of  it, 
which  could  not  be  changed  without  their  consent,  and  that  B. 
was  not  liable  as  garnishee  of  A.^  So,  where  A.  received  a  sum 
of  money  from  B.  to  pay  over  to  C,  and  afterwards  saw  C,  and 
informed  him  of  having  received  it,   but  that  he  did  not  then 

1  Myatt  V.  Lockhart,  9  Alabama,  91.  &  Dwight   v.   Bank  of   Michigan,   10 

2  Dolsen  v.  Brown,  13  Louisiana  An-     Metcalf,  58.     See  Cammack  v.  Floyd,  10 
■  nual,  551.  Louisiana  Annual,  351  ;  Smith  v.  Clarke, 

3  Mayer  y.  Chattahoochie  Nat.  Bank,  9  Iowa,  241;  Mansard  v.  Daley,  114 
51  Georgia,  325.  Mass.  408. 

*  Redd  V.  Burrus,  58  Georgia,  674. 
[448] 


CHAP.  XXIV.]  BY  ASSIGNMENTS  AND  LIENS.  §  528 

have  it  with  him,  but  would  pay  it  to  him  ;  to  which  C.  assented, 
and  requested  A.  to  hold  it  for  him,  which  A.  consented  and 
promised  to  do  ;  it  was  held,  that  C.'s  right  to  the  money  became 
absolute  after  his  conversation  with  A.,  and  paramount  to  an 
attachment  against  B.,  served  after  that  time.^ 

§  527.  An  equitable  assignment  will  secure  the  property  against 
attachment  for  the  debt  of  the  assignor,  though  no  notice  be 
given,  prior  to  the  attaclnnent,  to  the  person  holding  the  prop- 
erty, if  it  be  given  in  time  to  enable  him  to  bring  it  to  the  atten- 
tibn  of  the  court  before  judgment  is  rendered  against  him  as 
garnishee.  Thus,  A.  being  indebted  to  B.,  assigned  to  him  a 
policy  of  insurance  on  goods  at  sea,  which  were  afterwards  lost. 
A  creditor  of  A.  garnished  one  of  the  underwriters,  who  had  no 
knowledge  of  the  assignment  of  the  policy  ;  and  the  question  was 
whether  the  assignment,  without  notice  to  the  underwriters,  was 
good,  so  far  as  to  vest  a  property  in  the  assignee,  and  thus  pre- 
clude an  attachment ;  and  the  court  considered  that  the  assign- 
ment, though  made  without  the  knowledge  or  assent  of  the 
underwriter,  vested  an  equitable  right  in  the  assignee;  and  the 
garnishee  was  discharged.^  So,  a  judgment  obtained  in  the  name 
of  A.  to  the  use  of  B.,  is  not  attachable  in  a  suit  against  A.^  So, 
where  one  held  a  power  of  attorney  authorizing  him  to  transfer 
to  himself,  as  trustee,  certain  shares  of  bank  stock  to  pay  a  debt 
due  to  him  as  trustee,  it  was  held  to  be  an  equitable  assignment 
of  the  stock.* 

§  528.  Much  more  will  an  assignment  be  effectual,  where 
notice  of  it  has  been  given  to  the  garnishee  before  the  attach- 
ment. Thus,  where  the  garnishees  disclosed  that  they  had 
collected  money  for  the  defendant,  but  before  its  receipt  and  be- 
fore the  garnishment  they  had  accepted  an  order  drawn  on  them 
by  the  defendant  in  favor  of  a  third  person,  for  whatever  sum 

1  Brooks  V.  Hildreth,  22  Alabama,  469.  deman  v.  Hillsborough  &  Cin.  R.  R.  Co., 

See  Burnside  v.  McKinlcy,  12  Louisiana  2  Handy,  101  ;  Smith  v.  Clarke,  9  Iowa, 

Annual,    505;    Simpson    v.    Bibber,    59  241;  Canal  Co.  y.  Insurance  Co.,  2  Pliila- 

Maine,  196 ;  Ray  v.  Faulkner,  73  Illinois,  delphia,  354  ;  Noble  v.  Thompson  Oil  Co. 

469.  79  Penn.  State,  354;  McGuire  i>.  Pitts,  42 

'•i  Wakefield   v.  Martin,  3  Mass.  558.  Iowa,  535. 
See  Page  v.  Crosby,  24    Pick.  211;  Bal-  »  Davis  v.  Taylor,  4  Martin,  n.  s.  134. 
derstone  v.  Manro,  2  Cranch  C.  C.  623  ;  ^  Matheson  v.   Rutledge,  12  Richard- 
Walling  V.  Miller,  15  California,  38  ;  Hal-  son,  41. 

29  [449] 


§  528  garnishee's  liability   as  affected        [chap.  XXIV. 

they  might  collect ;  the  order  was  held  to  be  an  assignment  of 
the  money,  and  the  garnishees  were  discharged.^  So,  where  a 
bank  was  garnished,  in  respect  of  certain  shares  of  its  stock, 
standing  in  the  name  of  the  defendants  on  its  books,  but  which, 
it  appeared  in  evidence,  had,  before  the  garnishment,  been  sold 
and  transferred  by  the  defendants  in  England,  by  delivery  of  the 
certificate,  with  a  power  of  attorney  authorizing  the  transfer  of 
the  stock  on  the  books  of  the  bank,  though  the  stock  was  not 
transferred  until  afterwards  ;  the  court  decided  that  the  stock 
was  equitably  transferred  before  the  garnishment,  and  said :  "  It 
cannot  be  denied,  that  a  mere  chose  in  action  equitably  assigned, 
is  not  subject  to  the  operation  of  a  foreign  attachment  instituted 
against  the  party  whose  name  must  necessarily  be  used  at  law 
for  the  recovery  of  the  demand,  and  that  an  attaching  creditor 
can  stand  on  no  better  footing  than  his  debtor.  This  abundantly 
appears  from  the  English  authorities,  and  the  adjudications  in 
our  sister  State  courts,  cited  in  the  argument.  A  strong  instance 
of  this  kind  occurred  in  this  court  in  January  term,  1793. 
John  Caldwell  brought  a  foreign  attachment  against  Vance, 
Caldwell,  &  Vance,  and  laid  it  on  effects  supposed  to  have  been 
in  the  hands  of  Andrew  and  James  Caldwell,  who  at  one  time 
were  considerably  indebted  to  them.  Upon  the  plea  of  7iulla 
bona,  it  appeared  that  a  letter  had  been  written  authorizing 
Hugh  Moore  to  receive  this  debt,  and  apply  it  towards  payment 
of  a  debt  due  to  Moore  &  Johnston ;  and  the  jury,  under  the  di- 
rection of  the  court,  being  satisfied  that  it  amounted  to  an 
equitable  appropriation  of  the  demand,  found  that  the  garnishees 
had  no  effects  in  their  hands  due  to  Vance,  Caldwell,  &  Vance. 
This  court  sanctioned  the  verdict  by  their  judgment.  In  like 
manner  a  bond  made  assignable  in  its  first  creation,  which 
requires  by  our  act  of  assembly  the  ceremony  of  a  seal  and  two 
witnesses  to  authorize  the  assignee  to  maintain  a  suit  in  his  own 
name,  if  transferred  bond  fide,  without  seal  or  witnesses,  is  not 
liable  to  be  attached  for  the  debt  of  the  obligee  resident  in  a  for- 
eign country.     This  appears  perfectly  plain."  ^ 

1  Legro    V.   Staples,   16   Maine,   252 ;  Conn.  25 ;  Dobbins  v.  Hyde,  37  Missouri, 

Adams  v.  Robinson,  1  Pick.  461 ;  Nesmith  114  ;  Newell  v.  Blair,  7  Michigan,  10.3. 

I'.  Drum,  8  Watts  &  Sergeant,  9  ;  Brazier  ~  United  States  v.  Vaughan,  3  Binney, 

V.  Cliappell,  2  Brevard,  107  ;  Lamkin  v.  894. 
Phillips,   9   Porter,   98 ;  Colt   v.  Ives,  31 
[450] 


CHAP.  XXIV.]  BY   ASSIGNMENTS   AND   LIENS.  §  532 

§  529.  If  a  creditor  attach  goods  which  appear  as  the  property 
of  the  defendant,  but  wherein  another  person  has  nevertheless 
an  interest,  which  he  communicates  to  the  creditor  before  the  at- 
tachment is  hiid,  the  creditor  is  bound  to  refund  to  sucli  person 
his  proportion  of  the  money  recovered  under  the  attachment, 
notwithstanding  the  judgment  of  a  competent  court  decreed  the 
whole  to  the  plaintiff  as  the  property  of  the  defendant.^  And 
where  the  maker  of  a  note  was  charged  as  garnishee  on  account 
thereof,  and  paid  the  amount  of  it  under  the  attachment,  an 
assignee  of  the  note  prior  to  the  garnishment,  who  was  not  made 
a  party  to,  and  had  no  notice  of,  the  attachment  suit,  was  held 
entitled  to  recover  the  amount  of  the  note  from  the  attaching 
creditor.^ 

§  530.  Where  it  is  provided  by  law,  that  when  a  garnishee 
discloses  an  assignment  of  the  debt  to  a  third  person,  the  sup- 
posed assignee  may  be  cited  to  become  a  party  to  the  suit,  in 
order  to  test  the  validity  of  the  assignment,  a  judgment  declaring 
the  assignment  invalid  is  binding  on  the  garnishee ;  and  a  judg- 
ment against  him  after  a  trial  of  the  supposed  assignment, 
will  bar  a  subsequent  action  against  him  by  the  assignee.^ 

§  531.  The  rights  of  conflicting  assignments  of  the  same  effects 
cannot  be  tried  in  an  attachment  suit.  Where,  therefore,  it  ap- 
peared that  there  was  an  assignment  to  one  person  before  the  at- 
tachment, and  to  another  afterward,  it  was  held,  that  the  conflict 
between  the  two  assignments  was  an  appropriate  matter  for  the 
determination  of  a  court  of  equity;  but  that,  so  far  as  the  attach- 
ment was  concerned,  their  existence  only  showed  more  fully  that 
the  defendant  had  no  attachable  interest,  and  the  garnishee  was 
discharged.'^ 

§  532.  II.  Liens.  In  its  most  extensive  signification  the  term 
lien  includes  every  case  in  which  real  or  personal  property  is 
charged  with  the  payment  of  any  debt  or  duty ;  every  such 
charge  being  denominated  a  lien  on  the  property.  In  a  more 
limited  sense,  it  is  defined  to  be  a  right  of  detaining  the  property 

1  Bank   of  N.  America  v.  McCall,  3  ^  Fisk  v.  "Weston,  5  Maine,  410 ;  Born 

Binney,  338.  v.  Staaden,  24  Illinois,  320. 

-  Garrott  v.  Jaffray,  10  Bush,  413.  *  Shattuck    v.    Smitii,    16    Vermont ' 

132. 

[451] 


§  534  garnishee's  liability   as   affected       [chap.  XXIV. 

of  another  until  some  claim  be  satisfied.^  The  law  recognizes 
two  species  of  lien,  particular  liens  and  general  liens.  Particular 
liens  are,  where  a  person  claims  a  right  to  retain  goods,  in  respect 
of  labor  or  money  expended  on  such  goods ;  and  these  liens  are 
favored  in  law.  General  liens  are  claimed  in  respect  of  a  general 
balance  of  account ;  and  are  founded  on  express  agreement,  or 
are  raised  by  imphcation  of  law,  from  the  usage  of  trade,  or  from 
the  course  of  dealing  between  the  parties,  whence  it  may  be  in- 
ferred that  the  contract  in  question  was  made  with  reference  to 
their  usual  course  of  dealing.^ 

§  533.  If  a  garnishee  having  property  of  the  defendant  in  his 
possession,  has  a  vaUd  lien  thereon,  as  the  defendant  could  not 
take  the  property  from  him  without  discharging  the  lien,  so  nei- 
ther can  a  creditor  take  it  by  garnishment.^  Therefore,  where  a 
garnishee  to  whom  goods  were  consigned,  had,  before  the  gar- 
nishment, verbally  agreed  to  pay  to  a  third  person,  out  of  the 
proceeds  of  the  consignment,  a  bill  of  exchange  drawn  by  the 
consignor  on  the  garnishee,  it  was  held,  that  the  promise  was 
binding  on  him,  and  gave  him  a  lien  on  the  goods,  which  entitled 
him  to  retain  them  for  his  indemnity.* 

§  534.  In  South  Carolina,  before  the  enactment  of  the  statute 
to  be  referred  to  in  the  next  section,  it  was  held,  that  to  enable 
a  garnishee  to  retain  goods  of  the  defendant  in  his  hands,  it  is 
not  necessary  that  he  should  prove  himself  to  be  a  creditor  en- 
titled to  bring  an  action  ;  but  it  is  enough  if  he  establish  a  lien, 
even  for  outstanding  liabilities  incurred  for  the  defendant.  And 
it  was  there  decided,  that  where  an  agent  in  that  State,  for  a 
commission,  negotiates  exchanges  for  a  house  in  New  York,  buys 
bills  on  Europe  for  them,  and,  to  raise  funds  for  that  purpose, 
draws  and  sells  bills  upon  them  at  home  for  corresponding 
amounts;  some  of  which  they  accept,  and  others  they  do  not, 
and  the  bills  are  protested ;  such  agent  has  a  lien  on  any  funds 
or  securities  which  come  to  his  hands  for  his  principal,  to  secure 
himself  against  his  outstanding  liabilities,  although  he  have  not 

1  Bouvier's  Law  Dictionary.  Nolen  v.  Croolc,  5  Humplireys,  312  ;  Smitii 

2  2  Wheaton's  Selwyn,  4tli  Am.  Ed.     i-.  Clarke,  9  Iowa,  24L 

537.  ^  Grant  v.  Sliaw,  16  Mass.  341  ;  Curtis 

Nathan    v.  Giles,   5   Taunton,   558 ;     v.  Norris,  8  Pick.  280. 
Ivirkman   v.   Hamilton,   9  Martin,   297  ; 
[452] 


CHAP.  XXIV.]  BY   ASSIGNMENTS   AND   LIENS.  §  536 

in  fact  paid  any  of  the  bills.  And  there  is  no  difference  between 
bills  accepted  and  not  paid,  and  bills  not  accepted.  The  lien  ex- 
tends to  all  equally.  Nor  does  it  make  any  difference,  that  the 
funds  and  securities  came  to  hand  after  the  liability  was  incurred, 
and  therefore  were  not  looked  to  as  an  indemnity  at  the  tirae.^ 

§  535.  In  South  Carolina,  a  statute  provides,  that  if  the  de- 
fendant, whose  property  is  attached  in  the  hands  of  a  garnishee, 
be  really  and  truly  indebted  to  the  garnishee,  then  the  garnishee, 
if  his  possession  of  the  defendant's  property  was  obtained  legally 
and  bond  fide,  without  any  tortious  act,  shall  be  first  allowed  his 
own  debt.  In  such  case,  the  garnishee  is  there  styled  "  a  creditor 
in  possession  ; "  and  the  effect  of  the  statute  is  simply  to  give 
him  a  lien  on  the  property  in  his  hands  for  ani/  debt  due  from 
the  defendant  to  him,  whether,  by  the  general  principles  of  law, 
he  would  have  such  lien  or  not.  But  the  garnishee's  claim  must 
be  a  debt,  not  a  mere  liability,  in  virtue  of  which  he  may  or  may 
not  be  eventually  subjected  to  loss.  Therefore,  it  was  held,  that 
a  surety  not  having  paid  the  debt  of  the  principal,  is  not  entitled, 
when  summoned  as  garnishee  of  the  principal,  to  hold  the  effects 
in  his  hands  as  a  creditor  in  possession.^  Under  this  statute,  this 
case  arose.  A.  sent  an  order  to  B.  to  purchase  on  his  account  a 
quantity  of  cotton,  which  B.  purchased  and  forwarded  ;  the  last 
of  it  being  sent  on  the  3d  of  September.  On  the  4th,  7th,  and 
8th  of  September,  B.  drew  bills  on  A.,  payable  on  the  25th  of 
November,  which  were  accepted,  but  were  protested  for  non- 
payment. On  the  27th  and  28th  of  November,  C.  paid  the  bills 
for  B.'s  honor,  and  claimed  and  received  reimbursement  from  B. 
On  the  5th  of  December,  a  ship  of  A.'s,  which  had  previously 
come  consigned  to  B,,  was  attached  by  a  creditor  of  A.,  and  B. 
claimed  to  hold  the  ship  as  a  creditor  in  possession.  Two  ques- 
tions were  raised  :  1.  Whether,  when  the  attachment  was  levied, 
A.  was  indebted  to  B. ;  and,  2.  Whether  B.  had  then,  as  con- 
signee of  the  ship,  such  possession  of  her  as  to  entitle  him  to  the 
benefit  of  the  statute.  Both  questions  were  decided  in  the  affirm- 
ative ;  and  the  attachment  declared  inoperative  as  against  B.^ 

§  536.   Whether  the  garnishee  has  a  right  to  hold  the  de- 
fendant's property  against  an  attachment,  must  depend  on  the 

1  Bank  v.  Levy,  1  McMuUan.  431.  "  Mitchell    v.    Byrne,  6    Richardson, 

2  Yongue  y.  Linton,  6  Richardson,  275.     171. 

[453] 


§  539  garnishee's  liability   as   affected       [chap.  XXIV. 

actual  existence  of  a  lien,  as  contradistinguished  from  mere  pos- 
session. If  he  have  no  lien,  legal  or  equitable,  nor  any  right  as 
against  the  owner,  by  contract,  by  custom,  or  otherwise,  to  hold 
the  property  in  security  of  some  debt  or  claim  of  his  own ;  if  he 
has  a  mere  naked  possession  of  the  property  without  any  special 
property  or  lien ;  if  the  defendant  is  the  owner,  and  has  a  pres- 
ent right  of  possession,  so  that  he  might  lawfully  take  it  out  of 
the  custody  of  the  garnishee  ;  the  garnishee  cannot  claim  to  sat- 
isfy his  debt  out  of  it  before  the  attachment  can  reach  it ;  ^  but 
must  attach  it,  as  any  other  creditor,  for  his  debt.^ 

§  537.  Where  a  garnishee  has  in  his  possession  real  and  per- 
sonal property  of  the  defendant,  both  of  which  are  liable  to  him 
for  a  debt  of  the  defendant,  he  cannot,  in  the  absence  of  fraud, 
be  subjected  as  garnishee  in  respect  of  the  personalty,  and  there- 
by compelled  to  look  to  the  real  estate  alone  for  his  security.^ 

§  538.  III.  Mortgages  and  Pledges.  A  pledge  or  pawn  is  a 
bailment  of  personal  property,  as  a  security  for  some  debt  or  en- 
gagement. A  mortgage  of  goods  is  distinguishable  from  a  mere 
pawn.  By  a  grant  or  conveyance  of  goods  in  gage  or  mortgage, 
the  whole  legal  title  passes  conditionally  to  the  mortgagee ;  and 
if  the  goods  are  not  redeemed  at  the  time  stipulated,  the  title 
becomes  absolute  at  law,  although  equity  will  interfere  to  compel 
a  redemption.  But  in  a  pledge,  a  special  property  only  passes 
to  the  pledgee,  the  general  property  remaining  in  the  pledger. 
There  is  also  another  distinction.  In  the  case  of  a  pledge  of 
personal  property,  the  right  of  the  pledgee  is  not  consummated, 
except  by  possession ;  and  ordinarily  when  that  possession  is  re- 
linquished, the  right  of  the  pledgee  is  extinguished  or  waived. 
But  in  the  case  of  a  mortgage  of  personal  property,  the  right  of 
property  passes  by  the  conveyance  to  the  pledgee,  and  possession 
is  not,  or  may  not  be,  essential  to  create,  or  to  support  the  title.^ 

§  539.  The  principle  has  been  before  laid  down,  that  a  gar- 
nishee can  be  rendered  liable  in  respect  of  the  defendant's 
property  in  his  hands,  only  when  the  property  is  capable  of  being 

1  Allen  V.  Hall,  5  Metcalf,  263.  3  Scofield   v.    Sanders,    25  Vermont, 

2  Allen   V.   Megguire,   15  Mass.  490;     181;  Goddard  y.  Hap  good,  Ibid.  351. 
Bailey  v.  Eoss,  20  New  Hamp.  302.  *  Story  on  Bailments,  4th  Ed.  §  286, 

287. 
[454] 


CHAP.  XXIY.]  BY  ASSIGNMENTS   AND   LIENS.  §  539 

seized  and  sold  under  execution.     Upon  general  principles,  and 
in  the  absence  of  statutory  interposition,  an  execution  cannot  be 
levied  on  a  mere  equity.     The  interest  of  a  pledger  or  mortgagor 
in  personalty  pledged  or  mortgaged,  is  the  mere  equitable  right 
of  redemption,  by  paying  the  debt,  or  performing  the  engage- 
ment, for  the  payment  or  performance  of  which  the  property  was 
pledged  or  mortgaged.     Hence,  personalty  so  situated  is  not  sub- 
ject to  sale  under  execution,  and,  therefore,  not  attachable.^     It 
follows  that  the  pledgee  or  mortgagee  of  personalty  cannot  be 
held  as  garnishee  of  the  pledger  or  mortgagor,  while  the  property 
is  the  subject  of  the  pledge  or  mortgage.^     Especially  not  where 
the  mortgagee  is  not  in  possession  of  the  property ;  and  he  is  not 
under  obligation  to  take  possession  of  it,  so  as  to  make  a  fund 
capable  of  being  attached  by  a  creditor  of  the  mortgagor .^     Nor, 
if  there  be  no  agreement  that  he  shall  sell  the  property  to  pay 
the  debt  for  which  it  is  pledged  or  mortgaged,  can  he  be  com- 
pelled to  do  so ;  ■*   but  if  there  be  such  an  agreement,  and  the 
property,  in  pursuance  thereof,  be  sold,  any  surplus  remaining 
after  the  payment  of  the  debt  secured  may  be  reached  by  gar- 
nishment.^    But  in  order  to  the  mortgagee's  immunity  from  lia- 
bility as  garnishee  of  the  mortgagor,  the  mortgage  must  be  for  a 
debt  incurred   or  liability  encountered  before  the  garnishment. 
While  it  is  conceded  that  a  mortgage  may  be  valid,  containing  a 
stipulation  for  securing  future  advances  and  liabilities  on  the 
part  of  the  mortgagee,  yet  it  will  secure  only  such  as  have  been 
made  or  assumed  before  other  interests  have  intervened.     After 
the  mortgagee  has  been  subjected  to  garnishment  in  an  action 
against  the  mortgagor,  no  new   and   independent   indebtment, 
either  by  moneys  advanced  or  liabilities  assumed,  will  defeat  the 
lien  of  the  attachment,  or  have  a  priority  to  the  same  under  the 
mortgage.^ 

1  Badlam  v.  Tucker,  1  Pick.  389  ;  An-  v.  Hunt,  Ibid.   538 ;  Howard  v.  Card,  6 

drews  v.  Ludlow,  5  Ibid.  28  ;  Holbrook  v.  Maine,   353  ;    Callender  v.    Furbisli,   46 

Baker,  5  Maine,  309 ;  Haven  v.  Low,  2  Ibid.   226 ;  Kergin  v.  Dawson,  6   Illinois 

New    Hamp.    13;Picquet    v.    Swan,    4  (1  Oilman),  86 ;  Patterson  j;.  Harland,  12 

Mason,   443;  Thompson   v.    Stevens,   10  Arkansas,  158. 

Maine,  27  ;  Sargent  v.  Carr,  12  Ibid.  396 ;  »  Curtis    v.  Raymond,   29    Iowa,  52  ; 

Lyle  V.  Barker,  5  Binney,  457 ;    Hall  v.  First  National  Bank  v.  Perry,  Ibid.  266. 
Page,  4  Georgia,  428.  *  Badlam    v.   Tucker,   1    Pick.    389; 

■i  Badlam  v.  Tucker,  1  Pick.  389  ;  Cen-  Howard  v.  Carl,  6  Maine,  353. 
tral  Bank  v.  Prentice,  18  Ibid.  396  ;  Whit-  5  Badlam  v.  Tucker,  1  Pick.  389. 

ney  v.  Dean,  5  New  Hamp.  249  ;  Hudson  6  Barnard  v.  Moore,  8  Allen,  273. 

[455] 


§  540     garnishee's  liability  as  affected,  etc.    [chap.  XXIV. 

§  540.  Any  relinquishment,  however,  of  a  lien,  will  open  the 
way  for  the  garnishment  of  the  pledgee.  Therefore,  where  a 
creditor  who  had  property  in  his  possession  which  he  supposed 
to  be  pledged  to  him  for  the  payment  of  a  debt  due  him,  was 
summoned  as  garnishee  of  his  debtor,  and  afterwards  caused  the 
property  to  be  attached  by  a  writ  in  his  own  favor ;  it  was  held, 
that  he  had  relinquished  the  lien  he  claimed  to  have  had  by  the 
delivery  of  the  property  as  a  pledge,  and  was,  therefore,  subject 
to  garnishment.^ 

1  Swett  V.  Brown,  5  Tick.  178. 
[456] 


CHAP.  XXV.]      garnishee's  LIABILITY  AS  A  DEBTOR.  §  541  a 


CHAPTER    XXV. 

THE    garnishee's    LIABILITY  AS    A   DEBTOR   OF    THE     DEFEND- 
ANT.—  GENERAL  VIEWS.  —  DIVISION   OF   THE   SUBJECT. 

§  541.  We  reach  now  the  consideration  of  a  garnishee's  liabil- 
ity in  respect  of  his  indebtedness  to  the  defendant,  —  a  field  of 
inquiry  coextensive  with  that  over  which  we  have  just  passed,  in 
relation  to  the  kindred  topic  of  his  liability  in  regard  to  property 
of  the  defendant  in  his  possession.  The  two  subjects  will  be 
seen  to  have  many  principles  in  common.  For  instance,  we  have 
seen  that,  except  in  cases  of  fraudulent  transfers,  the  garnishee's 
liability  for  the  defendant's  property  in  his  possession,  depends 
much  upon  whether  the  defendant  has  a  right  of  action  against 
him  for  the  property.  So,  in  order  to  charge  a  garnishee  as  a 
debtor  of  the  defendant,  it  is  a  general  principle  —  subject,  of 
course,  to  exceptions  —  that  the  defendant  shall  have  a  cause  of 
action,  present  or  future,  against  him.^ 

§  541  a.  No  liability  can  be  enforced  against  a  garnishee  for  a 
debt  based  upon  an  illegal  consideration.  Thus,  where  A.,  an 
inhabitant  of  Maine,  was  indebted  to  B.,  an  inhabitant  of  Massa- 
chusetts, for  the  price  of  intoxicating  liquors  purchased  from 
B.,  in  the  latter  State,  with  intent  to  sell  the  same  in  the  former, 
where  such  sale  was  forbidden  by  law;  it  was  held,  that  A. 
could  not  be  charged  in  the  courts  of  Maine  as  garnishee  of  B., 
because  B.  could  not  in  the  courts  of  that  State  have  maintained 
an  action  against  him  for  the  price. ^ 

1  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  273;  Harrell  v.  Whitnnan,  19  Ibid.  135; 
Mass.  438 ;  White  v.  Jenkins,  16  Ibid.  Cook  v.  Walthall,  20  Ibid.  334 ;  Kettle  v. 
62 ;  Brigden  v.  Gill,  Ibid.  522 ;  Rundlet  Harvey,  21  Vermont,  301 ;  Patton  v. 
V.  Jordan,  3  Maine,  47 ;  Haven  v.  Wen^  Smith,  7  Iredell,  438 ;  Lundie  v.  Brad- 
worth,  2  New  Hamp.  93;  Adams  t>.  Bar-  ford,  26  Alabama,  512;  Hall  v.  Magee, 
rett.  Ibid.  374 ;  Piper  i;.  Piper,  Ibid.  439 ;  27  Ibid.  414;  McGehee  v.  Walke,  15 
Greenleaf  v.  Perrin,  8  Ibid.  273 ;  Paul  v.  Ibid.  183 ;  Lewis  v.  Smith,  2  Cranch  C. 
Paul,  10  Ibid.  117;  Hutchins  i;.  Hawley,  C.  571. 

9  Vermont,  295;  Hoyt  v.  Swift,  13  Ibid.  2  McGlinchy  v.  Winchell,  63  Maine, 

129  ;   Walke  v.  McGehee,  11  Alabama,  31. 

[457] 


§  543  garnishee's   liability  as   a   debtor.       [chap.  XXV. 

§  542.  Pending  the  garnishment,  the  rights  of  the  defendant 
are  exchided  and  extinguished,  only  to  the  extent  that  may  be 
necessary  for  the  ultimate  subjection  of  the  debt  or  property  in 
the  garnishee's  hands  to  the  operation  of  the  attachment.  For 
ever}'  purpose  of  making  demand,  or  securing  his  claim  by  attach- 
ment or  otherwise,  the  rights  of  the  defendant  remain  unimpaired 
by  the  pendency  of  the  garnishment.  They  subsist,  however,  in 
subordination  to  any  lien  created  by  that  proceeding.^ 

§  543.  By  the  custom  of  London  a  plaintiff  may,  by  garnish- 
ment, attach,  in  his  own  hands,  money  or  goods  of  the  defend- 
ant. But  can  a  plaintiif  charge  himself  as  garnishee,  in  respect 
of  a  debt  due  from  him  to  the  defendant,  or  can  several  plaintiffs 
summon  one  of  their  own  number,  with  a  view  so  to  charge 
him?  In  Pennsylvania  it  was  held,  that  the  former  might  be 
done  ;  ^  but  in  New  Hampshire,  that  it  could  not.^  The  ques- 
tion, in  the  latter  aspect,  came  before  the  Supreme  Court  of  Mas- 
sachusetts, which  declined  expressly  deciding  it,  because  its 
decision  was  not  necessary  in  the  case,  but  gave  a  very  distinct 
intimation  of  their  views  in  the  negative  ;  considering  it  a  novel 
experiment,  and  quite  distinguishable  from  the  case  of  a  plaintiff 
holding  money  or  goods  of  the  defendant,  and  attaching  them  in 
his  own  hands.*   In  Louisiana,  however,  it  was  held  that  it  might 

1  Hicks  V.  Gleason,  20  Vermont,  139.  genious  argument  for  the  plaintiff  goes 

^  Coble  V.  Nonemaker,  78  Penn.  State,  mainly  on  the  ground,  that  the  trustee 

501.  process  is  in  the  nature  of  process  in  rem, 

8  Blaisdell  v.   Ladd,   14  New  Hamp.  and    therefore    it    is    quite    immaterial 

129;  Hoag  u.  Hoag,  55  Ibid.  172.  whether    the    estate    and    effects   to  be 

4  Belknap  v.  Gibbens,  13  Metcalf,  471.  affected   by   the   attachment  are  in  the 

Shaw,  C.  J. :  "  Nor  have  we  thought  it  hands  of  the  plaintiffs,  or  one  of  them, 

necessary  to  express  an  opinion  upon  an-  or  in  those  of  a  third  person.     This  is 

other  question,  considered  in  the  argu-  true  in  regard  to  that  branch  of  the  stat- 

ment,   to   wit,   whether  a    plaintiff  can  ute  which  is  designed  to  reach  goods  and 

summon    himself,    or    whether    several  chattels,  so   deposited  that  they  cannot 

plaintiffs  can  summon  one  of  their  own  be  reached  by  the  ordinary  process   of 

number  as  a  trustee.    It  is,  as  far  as  we  attachment ;  but  in  such  case,  it  is  wholly 

know,  a  novel  experiment.     The  theory  unnecessary,  because  the  plaintiff,  hold- 

of    the  trustee   suit,   the   provisions   for  ing   any  such   goods,  which   are  attach- 

securing  the  relative  rights   of  plaintiff  able,  can  deliver  them  to  the  attaching 

and  trustee,  the  rights  of  appeal,  and  the  officer ;  as  every  trustee  is  obhged  to  do 

general  tenor  of  the  law,  seem  to  regard  on  execution,   when   he  is   charged   on 

the  suit,  as  between  plaintiff  and  trustee,  that  ground.    It  is  upon  the  other  branch 

as  an  adversary  proceeding,  and  to  bring  of  the   statute,    affecting   '  credits,'    that 

the  case  within  the  rule,  that  a  person  the  difficulty  arises,  where  the  purpose 

cannot  sue   himself,  or  be  plaintiff  and  is  to  charge  the  trustee  as  the  debtor  of 

defendant  in  the  same  case.  The  in-  the  defendant.  The  trustee  is  regarded 
[458] 


CHAP.  XXV.] 


GENEEAL  VIEWS. 


§544 


be  done ;  ^  and  so  in  Vermont.^  In  Tennessee,  also,  where  the 
proceeding  by  attachment  against  non-residents  is  in  chancery, 
this  case  arose.  A.,  B.,  &  C,  as  partners,  were  indebted  to  D., 
by  note.  D.  sued  on  the  note,  and  obtained  judgment  against 
A.  &  B.,  but  not  against  C,  who  was  a  non-resident ;  and  issued 
execution,  which  was  returned  nulla  bona  ;  A.  &  B.  being  insol- 
vent. C.  held  a  note  made  to  him  by  D.  &  E.,  which,  to  avoid 
the  claims  of  creditors,  he  transferred  by  assignment  to  F.,  a  res- 
ident, without  consideration  and  for  the  benefit  of  C.  Suit  was 
brought  on  this  note  by  F.,  and  judgment  obtained  against  D.  & 
E.,  and  all  the  money  paid  to  C,  except  an  amount  equal  to  the 
claim  of  D.  against  C.  on  the  note  of  A.,  B.,  &  C.  While  mat- 
ters were  in  this  position,  D.  filed  his  bill  in  chancery  against  C. 
and  F.,  to  subject  the  indebtedness  of  D.  &  E.  to  C,  to  the  pay- 
ment of  C.'s  debt  to  D.,  and  the  court  sustained  the  bill.^ 

§  544.  That  which  the  garnishment  operates  upon  in  this  class 
of  cases  is  credits.     The  term  credit,  in  this  connection,  is  used  in 


as  in  some  measure  in  privity  with  the 
defendant,  and  guardian  of  his  rights. 
If,  in  his  view,  the  judgment  charging 
him  as  trustee  is  erroneous,  and  injuri- 
ous to  the  defendant,  it  is  his  duty  to 
appeal  and  take  the  opinion  of  this  court. 
But  in  the  present  case,  it  would  be  an 
appeal  by  the  trustee  from  a  judgment 
in  favor  of  the  plaintiffs,  he  being  one. 
Again  ;  if  he  fail  to  pay  over  on  execu- 
tion, a  scire  facias  must  be  brought  by 
the  trustee  and  his  partners,  to  compel 
the  trustee  to  pay  the  debt  out  of  his 
own  effects.  In  theory  of  law,  it  is  an 
adversary  suit ;  there  is  a  conflict  of 
rights  between  the  plaintifT  and  trustee, 
bringing  the  case  within  the  ordinary 
rule  in  regard  to  opposing  parties." 

1  Grayson  v.  Veeche,  12  Martin,  688 ; 
Richardson  v.  Gurney,  9  Louisiana,  285. 

2  Lyman  v.  Wood,  42  Vermont,  113. 

3  Boyd  V.  Bayless,  4  Humphreys,  386. 
The  following  are  the  grounds  on  which 
the  bill  was  sustained :  "  The  single 
question  in  this  case  is,  whether  a  com- 
plainant, to  whom  a  non-resident  is  in- 
debted, can,  by  virtue  of  the  provisions 
of  tlie  Act  of  1835-6,  obtain  a  decree 
against  his  non-resident  debtor,  where 
the  fund  to  be  attached  is  in  tlie  hands 
of  the  complainant  himself,  or  the  debt 


or  chose  in  action  belonging  to  the  non- 
resident is  due  from  the  complainant. 
We  think,  under  such  circumstances  as 
are  disclosed  in  this  case,  relief  will  be 
granted  by  virtue  of  the  provisions  of 
that  act.  If  the  non-resident,  indeed, 
had  with  him  the  chose  in  action  or  note, 
nothing  could  be  done.  But  where  that 
is  here  deposited  in  the  hands  of  an 
agent,  or  transferred  to  a  mere  trustee 
for  his  benefit,  the  attachment  will  lie, 
and  the  fact  that  the  complainant  owes 
the  money,  any  more  than  a  third  person, 
will  not  have  the  effect  to  obstruct  the 
remedy  given  by  the  statute.  If  the 
note  had  been  given  by  E.  alone  to  C, 
and  had  been  by  C.  assigned  as  stated  to 
F.,  it  would  not  be  doubted,  by  any  one, 
for  a  single  moment,  that  this  bill  might 
have  been  filed.  But  the  fact  that  it 
was  given  by  D.  &  E.  can  make  no  dif- 
ference in  the  view  of  a  court  of  chan- 
cery ;  it,  to  be  sure,  in  order  to  make 
the  remedy  effectual,  under  the  circum- 
stances of  this  case,  requires  that  the 
court  should  enjoin  the  judgment  of  F., 
assignee,  against  D.  &  E.  When  the 
riglits  of  the  parties  are  determined,  that 
becomes  the  appropriate  mode  of  relief 
in  this  particular  case."  See  Arledge  v. 
White,  1  Head,  241. 

[459] 


§  545  garnishee's   liability   as   a  debtor.      [chap.  XXV. 

the  sense  in  which  it  is  understood  in  commercial  law  as  the 
correlative  of  debt.  Wherever,  therefore,  there  is  a  credit,  in 
this  sense,  there  is  a  debt,  and  without  a  debt  there  can  be  no 
credit.^  It  was  at  one  time  attempted  to  hold  by  garnishment, 
not  only  debts  due  from  the  garnishee,  but  debts  of  others  to  the 
defendant,  the  evidence  of  which,  as  notes,  bonds,  or  other  choses 
in  action,  might  be  in  the  garnishee's  hands ;  but  as  it  is  well  set- 
tled that  choses  in  action  are  not  attachable,^  the  attempt  failed, 
and  it  was  held,  that  credits  included  only  debts  due  from  the 
garnishee  to  the  defendant.^ 

§  545.  We  have  said  that  it  is  usually  necessary,  in  order  to 
charge  a  garnishee,  that  the  defendant  should  have  a  cause  of 
action  against  him.  It  will  of  course  be  understood  that  it  is  not 
every  cause  of  action  that  will  render  a  garnishee  liable,  but  only 
a  cause  of  action  for  the  recovery  of  a  debt.  Indeed,  the  rule 
announced  in  Alabama  may  be  considered  as  authoritative,  that 
no  judgment  can  be  rendered  against  a  garnishee,  when  there  is 
not  a  clear  admission  or  proof  of  a  legal  debt  due  or  to  become 
due  to  the  defendant ;  *  a  debt  for  which  the  defendant  might 
maintain  an  action  of  debt  or  indebitatus  assumpsit.^  Therefore, 
where  a  stockholder  in  a  corporation  was  summoned  as  garnishee, 
with  a  view  to  subject  him  to  liability  on  account  of  the  unpaid 
portion  of  his  stock  ;  and  it  appeared  that  he  had,  before  the 
garnishment,  paid  all  the  calls  which  had  been  made  upon  the 
stock ;  it  was  held,  that  he  could  not  be  charged,  because  he  was 
not  liable  to  the  corporation  until  a  call  should  be  made  on  him 
for  payment.^  So,  where  the  municipal  authorities  of  a  city 
adopted  a  resolution  laying  out  a  public  way,  and  embracing, 
amono:  other  things,  a  resolution  that  a  certain  sum  should  be 
awarded  and  paid  to  A.  ;  it  was  held,  that  this  was  no  debt  of 
the  city,  for  which  A.  could  maintain  an  action,  and  therefore 

1  Wentworth  v.  Whittemore,  1  Mass.  27  Ibid.  414 ;  Nesbitt  v.  Ware,  30  Ibid. 
471  ;  Wilder  v.  Bailey,  3  Ibid.  289.  68  ;  Powell  v.  Sammons,  31  Ibid.  552.    See 

2  Ante,  §  481.  Hassie  v.  G.  I.  W.  U.  Congregation,  35 
8  Lupton  V.  Cutter,  8  Pick.  298.  California,  378 ;  Caldwell  v.  Coates,  78 
*  Pressnall  v.  Mabry,  3  Porter,  105;     Penn.   State,  312;  Williams  v.  Gage,  49 

Victor  V.  Hartford  Ins.  Co.,  33  Iowa,  210.  Mississippi,  777  ;   Webster  v.  Steele,  75 

s  Walke    V.   McGehee,   11    Alabama,  Illinois,  544. 
273  ;  Harrell  v.  Whitman,  19  Ibid.   135 ;  «  Bingham    v.   Rushing,   5   Alabama, 

Cook  V.  Walthall,  20  Ibid.  334;  Lundie  403. 
V.  Bradford,  26  Ibid.  512 ;  Hall  v.  Magee, 
[460] 


CHAP.  XXV.]  GENERAL  VIEWS.  §  545 

that  the  city  could  not  be  charged  as  his  garnishee.^  So,  where 
A.  received  from  B.  a  sum  of  money,  and  in  consideration  thereof 
executed  to  B.  a  bond,  with  sureties,  to  make  to  him,  on  or  before 
a  day  named,  a  title  to  certain  land  ;  and  before  the  time  set  for 
making  the  title,  A.  was  summoned  as  garnishee  of  B.  He  an- 
swered stating  the  facts,  and  averring  that  he  had  not  title  to  the 
land,  and  could  not,  therefore,  make  title  thereto  to  B.  It  was 
sought  to  charge  him  as  garnishee,  in  respect  of  his  obligation 
to  return  the  money  to  B. ;  but  the  court  held,  that  he  was  not 
B.'s  debtor  for  that  sum,  because  the  time  named  in  the  bond  for 
making  the  title  had  not  yet  arrived,  and  A.,  if  he  failed  to  make 
the  title,  would  be  liable  on  his  bond  for  damages,  and  B.  might 
not  choose  to  receive  back  the  sum  he  had  paid,  as  a  discharge 
of  his  claim  against  A.^  So,  where  A.  executed  a  mortgage  on 
land,  conditioned  for  the  support  of  B.  during  life,  and  for  the 
payment  on  demand,  after  B.'s  death,  of  $1,000  to  C. ;  and  after 
B.'s  death,  A.  was  summoned  as  garnishee  of  C. ;  it  was  decided 
that  he  could  not  be  charged  as  such,  because  he  had  never 
promised  or  become  obligated  to  pay  that  sum  to  C,  though  his 
title  to  the  land  was  conditioned  upon  its  payment.^  So,  where 
goods  were  sold  for  cash  on  delivery,  and  after  the  vendor  had 
delivered  part  of  the  articles,  and  had  figured  up  the  amount  of 
the  prices  of  the  whole,  and  the  purchaser  took  his  wallet  out  of 
his  pocket  to  pay  for  them,  but  before  he  could  get  the  money 
ready  to  do  so,  he  was  summoned  as  garnishee  of  the  vendor  ;  it 
was  held,  that  the  transaction  was  a  sale  for  cash  ;  that  the  pur- 
chaser's failure  to  pay  the  cash  entitled  the  vendor  to  reclaim  the 
articles  delivered ;  and  he  having  done  so,  there  was  no  debt  of 
the  purchaser  to  him  for  which  the  purchaser  could  be  charged 
as  garnishee.'^  So,  where  a  constable  sold  of  a  defendant's  prop- 
erty more  than  sufficient  to  pay  an  execution,  and  took  the  note 
of  the  purchaser  for  the  surplus,  payable  to  the  defendant,  but 
without  the  defendant's  consent,  who  did  not  receive  the  note ; 
the  purchaser  could  not  be  charged  as  garnishee  of  the  defend- 
ant, because  the  relation  of  debtor  and  creditor  did  not  exist 
between  them.^    So,  where  a  son,  from  filial  duty,  took  his  father 

1  Fellows  V.  Duncan,  13  Metcalf,  332 ;  »  Morey  v.  Sheltus,  47  Vermont,  342. 
Geer  v.  Chapel,  11  Gray,  18.  ■*  Paul  v.  Reed,  52  New  Hamp.  136. 

2  Grace   v.   Maxfield,   G   Humphreys,  &  Turner  v.  Armstrong,  9  Yerger,  412. 

328. 

[461] 


§  545  a      garnishee's  liability  as  a  debtor,     [chap.  xxv. 

and  his  family,  avIio  were  poor,  and  had  no  other  home,  to  his 
own  house,  and  there  supported  them  ;  and  the  father  labored 
for  the  son  while  so  living  with  him,  and  his  services  were  worth 
more  than  the  support  furnished  ;  but  he  had  never  claimed  any 
further  compensation,  and  the  son  had  not  expected  to  make 
any;  the  son  was  held  not  chargeable  as  garnishee  of  the 
father. 1  So,  where  a  clerk  of  a  court  issued  an  attachment,  un- 
der which  property  of  the  defendant  was  seized  and  sold,  and 
the  proceeds  of  the  sale  were  paid  into  the  hands  of  the  clerk ; 
and  it  was  afterwards  decided  that  the  clerk  had  no  authority  to 
issue  the  writ,  and  that  all  the  proceedings  under  it  were  void  ; 
and  after  that  decision  was  given,  creditors  caused  the  clerk  to 
be  garnished,  to  subject  the  proceeds  of  the  sale  in  his  hands  to 
their  claims  ;  it  was  decided  that  the  clerk  was  not  a  debtor  of 
the  defendant.^ 

§  545  a.  Another  instance  in  which  the  garnishee  cannot  be 
charged,  though  the  defendant  have  a  cause  of  action  against 
him  for  a  debt,  is  where,  under  an  execution  issued  on  a  judg- 
ment rendered  against  an  administrator  for  a  debt  of  his  intes- 
tate, a  debtor  of  the  decedent  is  garnished.  Because,  by  allow- 
ing debtors  of  the  estate  to  be  garnished,  the  assets  might  be 
diverted  from  their  lawful  course  of  application,  and  so  confusion 


1  Cobb  V.  Bishop,  27  Vermont,  624.  and    his    creditors  cannot   defeat  tliem 

2  Lewis  V.  Dubose,  29  Alabama,  219.  by  bringing  a  garnishment  proceeding 
The  grounds  of  the  decision  were  as  fol-  against  him  who  may  have  the  funds 
lows :  "  The  defendants  in  the  attach-  arising  from  the  sale  of  the  property, 
ment  may  sue  for  and  recover  the  prop-  Until  the  owner  has  made  his  election  to 
erty  sold  if  it  can  be  found,  or  may  bring  sue  for  the  money,  which  may  be  done 
an  action  for  the  tort  committed  ;  or  they  by  bringing  an  action  for  it,  the  person 
may  waive  the  tort,  and  sue  the  clerk  in  having  the  money  cannot,  in  any  just 
assumpsit  for  the  money  arising  from  sense,  be  deemed  his  debtor.  To  allow 
the  sale  of  the  property  under  the  void  the  money  to  be  taken  in  attachment, 
attachment.  But  because  the  owners  of  might  be  productive  of  confusion  and 
the  property  wrongfully  sold  might  main-  wrong.  It  could  not  prevent  the  owners 
tain  an  action  of  assumpsit  to  recover  of  the  property  from  suing  for  its  recov- 
the  proceeds  of  the  sale,  it  does  not  fol-  ery,  or  for  the  damages,  and  would  yet 
low  that  the  money  can  be  attached  by  concede  to  them  the  benefit  of  the  appro- 
the  creditors.  The  creditors  have  no  priation  of  the  money  to  the  payment 
right  to  waive  the  tort,  or  to  surrender  of  their  debts,  and  leave  the  clerk  who 
the  right  to  recover  back  the  property,  received  the  money  without  the  means 
or  to  release  the  damages  against  the  of  reimbursing  the  person  against  whom 
tort-feasor.     Those  are  rights  which  ap-  an  action  might  be  brought." 

pertain  to  the  owner  of  property  alone, 
[462] 


CHAP.  XXV.]  GENERAL  VIEWS.  §  546 

be  introduced  into  the  settlement  of  estates,  it  is  held,  that  such 
debtors  cannot  so  be  subjected  to*  garnishment.^ 

§  546.  As  we  have  seen,^  in  regard  to  the  liability  of  a  gar- 
nishee for  property  of  the  defendant,  there  must  be  privity  of 
contract  and  of  interest  between  him  and  the  defendant,  in  order 
to  his  being  charged.     The  same  rule  applies  to  debts.     There- 
fore, where  the  agent  of  a  foreign  insurance  company  was  gar- 
nished, and  it  appeared  that  he  had  signed  a  policy  of  insurance, 
on  behalf  of  the  company,  on  property  of  the  defendant,  which 
was  afterwards  destroyed  by  fire ;  it  was  held,  that  he  could  not 
be  charged,  and  the  court  said :  "  The  respondent  is  simply  the 
agent  of  persons  in  a  foreign  country.     He  contracted  in  that 
character  with  the  defendant  on  behalf  of  his  principals,  and 
acknowledges  nothing  due  from  them  to  the  defendant.     The 
demand  of  the  defendant  is  upon  the  copartnership  in  London, 
and  if  he  had  by  action  maintained  that  demand,  and  recovered 
a  judgment  against  the  copartnership,  it  would  not  follow  that  the 
respondent  was  answerable  as  his  trustee.     Indeed,  no  state  of 
facts,  which  could  arise  out  of  the  transaction  stated  by  him, 
could  fix  him  as  trustee  of  the  defendant."  ^     So,  where  certain 
persons  signed  a  contract  as  a  building  committee  of  a  religious 
congregation  ;  they  were  decided  not  to  be  liable  as  garnishees  of 
the  builder,  because  they  were   mere  agents.*     So,  where  one 
purchased  property  at  an  administrator's  sale,  and  gave  his  note 
therefor  to  the  administrator,  as  such,  he  could  not  be  charged  as 
garnishee  of  the  payee  of  the  note,  on  account  of  the  payee's 
individual  debt ;  the  money,  though  payable  to  him,  not  being 
due  to  him  in  his  individual,  but  in  his  representative  capacity.^ 
So,  the  maker  of  a  note  payable  to  J.  B.,  trustee,  was  held  not 
chargeable   as  garnishee  of   J.   B.   individually.^      So,   where  a 
county  was  garnished  on  account  of  money  ordered  to  be  paid 
by  the  county  to  the  defendant  for  his  services  as  a  juror ;  it  was 
held,  that  the  services  had  not  been  rendered  on  any  contract, 
express  or  implied,  between  him  and  the  county,  but  were  ren- 

1  Marvel  v.   Houston,   2   Harrington,  *  Hewitt  v.  Wheeler,  22   Conn.  557. 

349  ;  Hartshorne  v.  Henderson,  3  Peuu.     See  ante,  §  514. 
Law  Journal  K.  511.  ^  Leasing  v.  Vertrees,  32  Missouri,  431. 

'^  Ante,  §  400.  ^  Adams  v.  Avery,  2  Pittsburgh,  77. 

3  Wells  V.  Greene,  8  Mass.  504.  See 
Smith  V.  Posey,  2  Hill  (S.  C),  471; 
Lewis  V.  Smith,  2  Cranch  C.  C.  671. 

[463] 


§  548  garnishee's   liability   as   a  debtor.      [chap.  XXV. 

dered  compulsorily,  and  did  not  constitute  either  "  goods,  effects, 
or  credits  "  of  the  defendant  in  the  liands  of  the  county.^ 

§  547.  A  legal  debt,  as  contradistinguished  from  an  equitable 
demand,  is  that  alone  which  will  authorize  a  judgment  against  a 
garnishee  ;  at  least  under  any  judicial  organization  which  sepa- 
rates legal  and  equitable  jurisdictions.  Therefore,  where  it  was 
attempted  to  charge  a  garnishee  of  A.,  by  showing  that  the  gar- 
nishee had  executed  a  note  to  B.,  which,  at  the  time  of  the  gar- 
nishment, was  in  the  possession  of  A.,  but  there  was  no  proof 
that  B.  had  indorsed  the  note,  or  that  the  garnishee  had  promised 
to  pay  it  to  A. ;  it  was  held,  that  the  court  could  not  in  this  pro- 
ceeding assume  to  settle  the  equitable  rights  of  the  parties  to  the 
note,  and  that  the  plaintiff  could  hold  only  such  debts  as  the  de- 
fendant could  recover  by  action  at  law  in  his  own  name  ;  that  is, 
his  legal  rights  as  distinguished  from  equitable.^  So,  where  a 
judgment  was  recovered  by  A.,  for  the  use  of  B.,  against  C,  it 
was  held,  that  C.  could  not  be  charged  as  garnishee  of  B.,  be- 
cause he  was  not  legally  indebted  to  him,  and  whatever  equitable 
indebtedness  there  might  be  was  not  attachable.^  So,  where  the 
garnishee's  indebtedness,  if  it  existed  at  all,  was  based  on  unset- 
tled accounts  between  him  and  the  defendant,  as  partners,  he 
was  held  not  chargeable.^ 

§  548.  In  no  case  where  the  claim  of  the  defendant  against  the 
garnishee  rests  in  unliquidated  damages,  can  the  garnishee  be 
made  liable.  B.  &  P.,  partners,  were  summoned  as  garnishees  of 
T.,  and  it  appeared  that  they  had  signed  and  delivered  to  T.  a 

1  Williams  v.  Boardman,  9  Allen,  570.  to  pursue  such  a  course  as  to  determine 
See  Simons  v.  Whartenaby,  2  Penn.  their  respective  and  conflicting  rights, 
Law  Journal  R.  438  ;  Clark  v.  Clark,  62  renders  it  impracticable.  Otherwise,  two 
Maine,  255.  or  more  copartners  might  be  called  in  as 

2  Harrell  v.  Whitman,  19  Alabama,  trustees  of  another  partner,  and  com- 
135.  See  Hugg  v.  Booth,  2  Iredell,  282  ;  pelled  to  render  an  account  of  the  whole 
May  V.  Baker,  15  Illinois,  89 ;  Barker  v.  copartnership,  and  strike  the  balance 
Esty,  19  Vermont,  131.  In  Hoyt  v.  Swift,  between  themselves  and  their  copartner, 
13  Vermont,  129,  Collamer,  J.,  said  :  and  thus  wind  up  a  long  and  intricate 
"  The  debt  for  which  the  trustee  is  pur-  concern,  without  the  intervention  of  an 
sued,  must  be  a  debt  which  the  defendant  auditor  or  commissioner,  and  in  the  ab- 
could  himself  pursue  at  law.  It  is  im-  sence  of  their  copartner ;  and  all  this, 
practicable  thus  to  enforce  a  mere  equity  too,  when  the  defendant  could  have  sus- 
claim.     The  want  of  chancery  power  in  tained  no  action  at  law." 

the  county  court,  to  call  all  the  parties  ^  Webster  v.  Steele,  75  lUinois,  544. 

incidentally  interested  before  them,  and  *  ives  v.  Vanscoyoc,  81  Illinois,  120. 

[464] 


CHAP.  XXV.]  GENERAL   VIEWS.  §  549 

paper  in  the  following  words  :  "  This  may  certify  that  if  Mr.  S. 
T.  should  wish  to  purchase  of  us  tin-ware  at  our  wholesale  prices 
within  twelve  months  from  date,  and  should  have  O.  P.'s  note  in 
his  possession,  we  will  take  the  same  in  payment."  Within 
twelve  months  from  the  date  of  this  instrument,  T.  presented  to 
B.  &  P.  four  notes  of  O.  P.,  and  demanded  their  amount  in  tin- 
ware at  wholesale  prices,  and  B.  &  P.  refused  to  comply  with  the 
demand.  It  was  contended  that  on  this  state  of  facts  B.  &  P. 
might  be  held  as  garnishees  of  T. ;  but  the  court  decided  that  as 
T.'s  claim  was  not  a  legal  debt,  but  rested  only  in  unliquidated 
damages,  the  garnishment  could  not  be  sustained. ^  So,  a  mere 
liability  of  the  garnishee  to  an  action  on  the  part  of  the  defend- 
ant for  negligence,  fraud,  slander,  or  assault  and  battery  ;  ^  or  for 
the  wrongful  conversion  of  the  defendant's  property  ;  ^  or  for  th6 
recovery  from  a  creditor  of  usurious  interest  paid  him  by  the  de- 
fendant ;  ^  or  for  damages  caused  by  a  wrongful  attachment ;  ° 
cannot  be  the  foundation  of  a  judgment  against  the  garnishee. 
So,  a  liability  of  a  constable  to  an  execution  creditor,  for  a  breach 
of  official  duty  in  respect  to  the  collection  of  the  execution,  can- 
not be  attached  in  an  action  by  a  creditor  of  the  person  to  whom 
the  constable  is  so  liable.  The  officer's  liability  in  such  case  is 
for  a  specific  breach  of  duty,  a  mere  tort^  and  is  no  more  subject 
to  this  process,  than  any  other  right  of  action  in  form  ex  delicto.^ 
Much  less  can  the  securities  in  an  officer's  official  bond,  against 
whom  an  action  might  be  maintained  for  his  failure  to  pay  over 
money  collected  by  him  on  execution,  be  held  as  garnishees  of 
the  execution  plaintiff. *" 

§  549.  A  mere  contract  of  indemnity,  where  no  loss  has  been 
sustained  by  the  party  indemnified,  cannot  authorize  the  garnish- 
ment of  the  maker  of  the  contract  in  a  suit  against  such  party. 
Thus,  where  an  arrangement  was  made  between  A.  &  B.,  whereby 

1  Huggy.  Booth,  2  Iredell,  282;  Deaver  <  Boardman  v.   Roe,   13   Mass.   104; 

r.  Keitli,  5  Ibid.  374;  Leefe  v.  Walker,  Graham    v.  Moore,    7   B.    Monroe,   53; 

18    Louisiana,    1.     See    Rand    v.    White  Barker  v.  Esty,  19   Vermont,   131 ;  Fish 

Mountain  R.  R  ,  40  New  Hamp.  79;  Mc-  v.  Field,  Ibid.   141 ;  Ransom  v.  Hays,  39 

Kean  v.  Turner,  45  Ibid.  203.  Missouri,  445. 

'i  Rundlet    v.  Jordan,   3    Maine,  47 ;  8  Feet  v.  MeDaniel,  27  Louisiana  An- 

Foster  v.  Dudley,  10  Foster,  463 ;  Lorn-  nual,  455. 

erson  v.  Huffman,  1  Dutcher,  625.  «  Ilemmenway  v.  Pratt,  23  Vermont, 

3  Paul  V.Paul,   10  New   Hamp.  117;  332;  Tliayer  y.  Southwick,  8  Gray,  229. 

Despatch  Line  v.  Bellamy,  Man.  Co.,  12  1  Eddy  v.  Heath's  Garnishees,  31  Mis- 

Ibid.  205 ;  Getcheli  v.  Chase,  37  Ibid.  106.  souri,  141. 


80 


[465] 


§  549  garnishee's    liability   as   a  debtor.      [chap.  XXV. 

A.  was  to  give  his  notes  to  C.  for  certain  goods  purchased  by  B., 
and  B.  was  to  furnish  A.  with  the  money  to  pay  the  notes  as  they 
matured,  and  the  notes  were  given,  but  before  they  matured,  A. 
became  insolvent,  and  failed  to  pay  the  notes,  and  afterwards  B. 
was  summoned  as  garnishee  of  A. ;  it  was  hekl,  that  his  contract 
to  indemnify  A.  was  not,  in  the  absence  of  a  payment  of  tlie  notes, 
or  the  sustaining  of  any  damage  by  A.,  a  ground  for  charging 
him,  though  it  appeared  that  A.'s  notes  had  been  received  by  C. 
expressly  in  payment  for  the  goods  sold.^  But  where  under  a 
contract  of  indemnity  a  loss  has  occurred,  and  the  party  indem- 
nified has  a  claim  for  such  loss  against  him  who  engaged  to  in- 
demnify him,  the  latter  may  be  charged  as  his  garnishee  in  respect 
of  such  loss,  if  the  contj'act  furnish  a  standard  by  ivhich  the  amount 
of  the  liability  may  be  ascertained  and  fixed.  Thus,  an  insurance 
company  may  be  so  charged  on  account  of  a  loss  accruing  under 
a  policy  of  insurance  issued  by  it ;  for  the  liability  to  the  insured 
clearly  exists,  and  the  policy  furnishes  the  required  standard. 
This  has  been  held,  not  only  as  to  adjusted  claims  for  loss,^  but 
also  as  to  such  claims  unadjusted.^ 


1  Townsend  v.  Atwater,  5  Day,  298. 
In  Downer  v.  Topliff,  19  Vermont,  399,  a 
doctrine  was  maintained,  which,  so  far  as 
my  observation  extends,  goes  farther 
than  any  elsewhere  announced,  in  reacli- 
ing,  thiougli  garnislinient,  a  liability  to 
the  defendant.  A.  executed  a  bond  to  B., 
a  constable,  to  indemnify  him  for  having 
attached  certain  property  in  a  suit  in 
favor  of  A.  v.  C.  After  the  attachment, 
D.  sued  B.,  the  constable,  for  taking  the 
property,  and  recovered  judgment  against 
him  for  its  value,  and  in  that  action  sum- 
moned A.  as  garnishee  of  B. ;  and  the 
question  was  whetlier  A.  was  liable  as 
garnishee  in  respect  of  his  having  ex- 
ecuted the  bond  of  indemnification  to  B. 
EoYCE,  C.  J.,  in  delivering  the  opinion  of 
the  court,  said  :  "  We  tliink  there  is  no 
sufficient  ground  for  saying  that  the  claim 
against  the  trustee,  upon  their  bond  to  B., 
did  not  constitute  a  kind  of  indebtedness, 
at  the  time  when  this  proceeding  was 
commenced,  wliich  might  well  be  reached 
by  the  trustee  process.  The  bond  was 
given  to  B.,  an  officer,  to  indemnify  him 
for  having  attached  certain  property,  at 
[466] 


the  suit  of  the  trustee  A.,  as  belonging  to 
one  C.  And  it  is  true,  that,  until  a  re- 
covery was  had  against  B.  for  the  prop- 
erty, at  tlie  suit  of  D.,  who  made  good 
his  title  to  it,  the  bond  constituted  but  a 
contingent  claim  against  the  signers,  and, 
as  such,  was  excluded  from  the  operation 
of  the  trustee  process  by  express  statute. 
But  after  B.  had  been  thus  damnified,  and 
a  clear  and  substantial  cause  of  action 
arose  upon  the  bond,  the  signers  became 
fixed  with  an  obligation,  which  was  cer- 
tain as  to  the  liability,  and  uncertain  only 
as  to  the  amount  for  which  they  might 
be  ultimately  subjected.  It  was  like  any 
other  indebtedness,  where  the  amount  is 
susceptible  of  dispute  and  controversy." 

^  Boyle  V.  Franklin  Fire  Ins.  Co.,  7 
Watts  &  Sergeant,  76;  Franklin  Fire  Ins. 
Co.  V.  West,  8  Ibid.  350. 

3  Knox  V.  Protection  Ins.  Co.,  9  Conn. 
4.30;  Girard  Fire  Ins.  Co.  v.  Field,  45 
Penn.  State,  129;  3  Grant,  329;  North- 
western Ins.  Co.  V.  Atkins,  3  Bush,  328. 
Sed  contra,  Gies  v.  Bechtner,  12  Minne- 
sota, 279 ;  McKean  v.  Turner,  45  New 
Hamp.  203. 


CHAP.  XXV.]  GENERAL  VIEWS.  §  550 

§  550.  It  may  further  be  considered  as  settled,  that  the  debt 
must  be  such  as  is  due  in  money}  All  debts,  in  the  absence  of 
contrary  stipulations  between  the  parties,  must  be  paid  in  money. 
Therefore,  where  the  garnishee  acknowledged  an  indebtedness  to 
the  defendant,  payable  in  mason's  work  and  materials,  it  was 
held,  that  he  could  not  be  charged.^  So,  where  the  garnishee 
had  given  a  bond  to  the  defendant  for  "  1,500  acres  of  land  war- 
rant, and  800  and  odd  dollars  payable  in  whiskey."  ^  So,  where 
the  garnishee  had  the  defendant  in  his  employ  as  a  laborer,  under 
an  agreement  that  he  should  be  paid  in  orders  on  another.^  So, 
where  by  the  terms  of  a  written  agreement  under  which  the  gar- 
nishee's indebtedness  to  the  defendant  was  payable  in  the  gar- 
nishee's negotiable  promissory  notes.^  So,  where  the  garnishee 
was  indebted  to  the  defendant  in  a  certain  sum  to  be  paid  in 
"store  accounts."^  So,  where  the  garnishee  had  given  the  de- 
fendant a  due-bill  for  "  11,000  in  brandy  at  $5  per  gallon."  ^  And 
where  payment  was  to  be  made  in  notes  of  the  defendant  to 
other  persons,  to  be  procured  by  the  garnishee,  he  was  held  not 
to  be  liable.^  And  where  one  gave  a  note  to  another  for  a  sum 
of  money,  "  payable  in  boarding  the  wife  and  child  "  of  the  payee, 
it  was  decided  that  he  was  not  chargeable.^  And  where  one 
gave  a  note  payable  in  the  notes  or  obligations  of  a  certain  bank- 
ing company,  he  was  held  not  chargeable  for  the  amount  in 
money,  if  he  delivered  up  the  notes,  to  be  disposed  of  by  the 
court.^^  In  all  these  cases  the  courts  proceeded  upon  the  obvious 
principle,  that  they  had  no  power  to  interfere  with  the  contract 
between  the  defendant  and  the  garnishee,  and  to  make  the  latter 
pay  in  money,  what  he  had  agreed  to  pay,  and  the  defendant  had 
agreed  to  receive,  in  something  else.^^ 

Still  we  find  in  Maryland,  that  where  a  garnishee  was  indebted 
to  the  defendant  in  a  sum  of  money,  payable,  by  express  agree- 
ment, in  work  and  labor,  he  was  charged. ^^  And  in  Massachusetts, 

1  Mims  V.  Parker,  1  Alabama,  421.  8  Mims  v.  Parker,  1  Alabama,  421. 

'^  Wrigley  v.  Geyer,  4  Mass.  102.  9  Aldrich  v.  Brooks,  5  Foster,  241. 

8  McMinn  v.  Hall,  2  Tennessee,  328.  '0  Marshall    v.   Grand    Gulf  R.   R.   & 

See  Blackburn  v.  Davidson,  7  B.  Monroe,  Banking  Co.,  5  Louisiana  Annual,  360. 

101 ;  iSniitli  v.  Davis,  1  Wisconsin,  447.  See  Jennings   v.    Summers,    7    Howard 

*  Willard  v.  Butler,  14  Pick.  550.  (Mi.),  453. 

5  Fuller  r.  O'Brien,  121  Mass.  422.  "  Bartlett  v.  Wood,  32  Vermont,  372. 

6  Smith   V.  Chapman,   ti  Porter,  365.  See  Cherry  v.  Hooper,  7  Jones,  82. 

See  Blair  v.  Rhodes,  5  Alabama,  648.  i'^  Louderman   v.  Wilson,  2  Harris  «& 

7  Weil  V.  Tyler,  38  Missouri,  545 ;  43     Johnson,  379. 
Ibid.  581. 

[467] 


§  551  garnishee's  liability   as   a   debtor.      [chap.  XXV. 

it  has  been  decided  that  the  maker  of  a  note  payable  in  horses} 
or  in  (j/oods,'^  could  be  held  as  garnishee.  This  unusual  decision, 
however,  rests  upon  an  express  statutory  provision,  authorizing 
one  who  was,  when  served  with  process,  "  bound  to  deliver  to 
the  defendant,  at  a  then  future  day,  any  specific  article  or  articles 
whatsoever,  other  than  money,"  to  be  declared  garnishee  of  the 
defendant,  and  permitting  him  to  deliver  the  specific  articles  to 
the  sheriff,  when  execution  should  be  issued  against  the  defend- 
ant. And  in  Iowa  it  was  held,  that  judgment  might  be  rendered 
against  a  garnishee  on  account  of  a  debt  payable  "in  merchan- 
dise or  trade  ; "  but  that  the  judgment  should  be  a  conditional 
one,  for  the  amount  of  the  garnishee's  debt,  but  to  be  discharged 
in  merchandise,  at  a  fair  value,  to  be  placed  at  the  disposal  of  the 
sheriff ;  on  failure  whereof  the  judgment,  on  motion,  to  become 
absolute,  for  which  a  general  execution  could  issue.^ 

§  551.  The  debt  from  the  garnishee  to  the  defendant,  in  respect 
of  which  it  is  sought  to  charge  the  former,  must  moreover  be 
absolutely  payable,  at  present  or  in  future,  and  not  dependent  on 
any  contingency.  If  the  contract  between  the  parties  be  of  such 
a  nature  that  it  is  uncertain  and  contingent  whether  any  thing 
will  ever  be  due  in  virtue  of  it,  it  will  not  give  rise  to  such  a 
credit  as  may  be  attached  ;  for  that  cannot  properly  be  called  a 
debt,  which  is  not  certainly  and  at  all  events  payable,  either  at 
the  present  or  some  future  period.*  Therefore,  where  an  attempt 
was  made  to  attach,  by  garnishment  of  a  ship-owner,  the  wages 
of  a  sailor  employed  on  his  ship,  then  at  sea,  and  which  had  not 
arrived  at  any  port  of  unlading,  as  it  was  uncertain  whether  the 
ship  ever  would  arrive,  and,  therefore,  whether  any  thing  would 
ever  become  due  to  the  defendant,  it  could  not  be  called  a  debt, 
and  the  garnishee  was  therefore  not  chargeable;^  and  this  though 
the  vessel  had  arrived  just  outside  of  the  harbor  to  which  she 
was  bound,  and  was,  by  grounding,  prevented  from  entering  it.^ 
So,  where  there  was  a  contract  between  the  shipper  of  a  cargo 

1  Corastock  V.  Farnum,  2  Mass.  96.  Wood  v.  Buxton,  108  Mass.  102;  Maduel 

2  Clark  V.  King,  2  Mass.  524.  v.  Mousseaux,  29  Louisiana  Annual,  228; 

3  Stadler  f.  Parmlee,  14  Iowa,  175.  and  tlie  subsequent  cases  in  this  section. 

4  Cushing's  Trustee  Process,  37  ;  Rob-  5  Wentwortli  v,  Whittemore,  1  Mass. 
erts  V.  Drinkard,  3  Metcalfe  (Ky.),  309;  471. 

Russell  V.  Clingan,   33  Mississippi,  535 ;  «  Taber  v.  Nye,  12  Pick.  105. 

Bishop   v.    Young,    17    Wisconsin,    46 ; 

[468] 


CHAP.  XXV.]  GENERAL   VIEWS.  §  551 

and  the  owner  of  the  ship,  that  the  latter  should  receive  a  share 
of  the  profits  arising  on  the  cargo  ;  and,  before  the  completion  of 
the  voyage,  the  shipper  was  summoned  as  garnishee  of  the  owner; 
the   court,  regarding  it  as  contingent  whether  the  ship  would 
successfully  terminate  the  voyage,  or  if  so,  whether  there  would 
be  any  profits  on  the  cargo,  considered  that  there  was  no  debt 
capable  of  attachment.^     So,  where  the  garnishee  had  received 
from  the  defendants  a  bill  of  exchange,  and  gave  a  receipt  there- 
for, promising  to  account  to  the  defendants  for  the  proceeds  of 
the  bill  when  received ;  and  before  the  payment  of  the  bill  he 
was  garnished ;  it  was  held,  that,  as  it  was  contingent  whether 
the  bill  would  ever  be  paid,  he  could  not  be  charged.^    So,  where 
one,  acting  for  himself  and  as  agent  of  others,  left  a  part  of  a 
cargo,  shipped  on  a  vessel  of  which  he  was  master,  and  in  which 
he  and  the  defendants  were  jointly  interested,  with  merchants 
abroad,  to  be  sold  on  his  account,  and  the  proceeds  to  be  subject 
to  his  order,  and  took  the  receipt  of  the  merchants  to  that  effect ; 
and  while  the  goods  were  in  this  situation,  he  was  summoned  as 
garnishee  of  the  other  parties  to  whom  jointly  with  him  the  goods 
belonged ;  it  was  decided,  that  the  credit  was  a  contingent  one, 
and  therefore   not  attachable.^     So,  where   a  lessee,  who  cove- 
nanted to  pay  rent  quarterly,  was  summoned  as  garnishee  of  the 
lessor,  he  was  held  only  for  such  quarters'  rent  as  were  due  when 
he  was  summoned  ;  all  beyond  that  being  considered  contingent 
and  uncertain.*     So,  where  one  received  a  bill  of  lading  and  an 
invoice  of  goods  consigned  to  him,  and,  before  the  receipt  of  the 
goods,  was  garnished  in  a  suit  against  the  consignor,  he  was  dis- 
charged, because  it  was  contingent  whether  he  would  ever  receive 
or  accept  the  consignment.^     So,  where  the  garnishee  had  em- 
ployed the  defendant  as  a  broker  to  make  a  purchase  of  a  cargo 
of  lemons  and  oranges,  with  an  agreement  that  the  defendant 
should  have  one-third  part  of  the  net  profits  upon  a  resale,  and, 
at  the  time  of  the  garnishment,  the  whole  proceeds  of  the  resale 
had  not  been  received  ;  it  was  held  uncertain  and  contingent 
whether  there  would,  on  closing  the  transaction,  be  any  thing 
due  the  defendant,  and  the  garnishee  was  discharged.^    So,  wliere 

»  Davis  V.  Ham,  3  Mass.  33.  See  Baltimore  &  Ohio  R.  R.  Co.  v.  Galla- 

2  Frothingham  v.   Haley,  3  Mass.  68.  hue,  14  Gratton,  563 ;  Strauss  v.  Railroad 
See  Hancock  v.  Colyer,  09 'ibid.  187.  Co.,  7  West  Virginia,  368. 

3  Willard  v.  Sheafe,  4  Mass.  235.  ^  Grant  v.  Shaw,  16  Mass.  341. 

*  Wood  V.  Partridge,  11   Mass.  488.  ^  Williams  i;.  Marston,  3  Pick.  65. 

[469] 


§  551  GAKNISHEE's  liability  as   a   debtor.      [chap.  XXV. 

a  garnishee  held  real  estate  of  the  defendant  under  a  promise  to 
sell  and  pa}^  over  the  proceeds,  it  Avas  held,  that  such  a  promise 
to  pay  over  money  was  but  an  executory  contract,  and  that  there 
might  he  several  contingencies,  without  the  fault  of  the  gar- 
nishee, that  would  prevent  his  owing  money ;  and  he  was  dis- 
charged.^ So,  where  a  contract  existed  between  the  garnishee 
and  the  defendant,  by  which  the  defendant  was  to  be  employed 
by  the  garnishee  in  a  manufactory,  for  a  salary,  and  was  to  de- 
posit with  the  garnishee  I^SOO  to  indemnify  him  against  loss  in  the 
business,  and,  upon  the  dissolution  of  the  contract,  so  much  of 
the  sum  deposited  as  should  not  be  required  to  indemnify  the 
garnishee  against  loss  was  to  be  repaid  to  the  defendant ;  it  was 
held  to  be  uncertain  and  contingent,  when  the  garnishee  was 
summoned,  whether  the  defendant  would  ever  be  entitled  to  re- 
cover the  1300  deposited,  and  that,  therefore,  the  garnishee  was 
not  liable.^  So,  where  a  testator  bequeathed  to  his  wife  "  the 
use  of  thirty  shares  in  the  Oxford  Bank,  said  shares,  at  her  de- 
cease, to  be  equally  divided  between  his  heirs ;  "  and  died,  leaving 
several  children,  and  his  executor  was  summoned  as  garnishee  of 
the  husband  of  one  of  them ;  it  was  held,  that  the  reversionary 
interest  of  any  one  of  the  children  in  these  shares  was  contingent, 
and  consequently  not  liable  to  be  attached  in  the  hands  of  the 
executor.^  So,  where  the  garnishee  disclosed  that  the  defendants, 
being  indebted  to  him,  had  caused  certain  of  their  goods  to  be 
insured,  and  the  policy  required  payment,  in  case  of  a  loss,  to  be 
made  to  him,  and  that  the  goods  were  destroyed  by  fire,  and 
before  proof  of  the  loss  was  made  he  v^^as  garnished ;  it  was  con- 
sidered that  his  liability  to  the  defendants  was  contingent,  and 
he  was  discharged.*  So,  where  a  son  gave  a  bond  to  his  father 
for  the  payment  of  certain  sums  of  money,  and  the  delivery  of 
certain  quantities  of  provisions,  at  fixed  times  in  each  year  during 
his  father's  life  ;  he  could  not  be  charged  as  garnishee  of  the 
father  for  any  thing  not  actually  payable  at  the  time  when  he 
was  garnished ;  all  future  payments  being  contingent,  depending 
on  the  continuance  of  the  father's  life.^     So,  where  a  note  was 

1  Guild  V.  Holbrook,  11  Pick.  101.  wliere   the   contract  was,  that  the   gar- 

2  Faulkner  v.  Waters,  11  Pick.  473.  nishee  should  pay  the  defendant  $45  an- 

3  Rich  V.  Waters,  22   Pick.  563.     See  nually  so  long  as  the  defendant  should 
Clement  i;.  Clement,  19  New  Hamp.  460.  live,  "and  at  that  rate  for  any  part  of  a 

*  Meachamy.  ]VIcCorbitt,2  Metcalf,352.     year,"  it   was   held    that   the    garnishee 

*  Say  ward  v.  Drew,  6  Maine,  263.     In     could  be  charged  for  the  proportion  of  that 
Sabin  i'.  Cooper,  15  Gray,  532,  however,     sum  due  at  the  time  of  the  garnishment. 

[470] 


CHAP.  XXV.]  GENERAL  VIEWS.  §  552 

executed,  payable  on  a  contingency,  and  before  it  became  payable 
absolutely  the  maker  was  summoned  as  garnishee  of  the  payee  ; 
it  was  held,  that  the  contingency  not  having  happened  upon 
which  it  would  become  absolutely  due,  he  could  not  be  charged.^ 
So,  where  a  consignee  who  had  sold  goods  upon  a  credit,  and 
guaranteed  the  sale,  was  summoned  as  garnishee  of  the  consignor, 
before  the  expiration  of  the  credit,  it  was  considered  that  his 
undertaking  was  collateral  and  contingent,  and  that  he  could  not 
be  charged.^  So,  where  an  insurance  company  was  garnished  in 
respect  of  a  policy  it  had  issued  on  the  defendant's  goods,  which 
had  been  destroyed  by  fire ;  which  policy  provided  that  in  case 
of  loss  it  should  be  optional  with  the  company  to  replace  the 
articles  lost  or  damaged  with  others  of  the  same  kind  and  quality, 
or  to  take  the  goods  at  their  appraised  value,  giving  notice  of  its 
intention  so  to  do  within  thirty  days  after  having  received  the 
preliminary  proofs  of  loss ;  and  the  garnishment  took  place  before 
any  proof  of  loss,  and  when  no  election  had  been  made  by  the 
company  ;  and  under  the  law  a  garnishee  could  be  charged  only 
for  what  he  owed  when  garnished ;  it  was  held,  that  it  was  con- 
tingent and  uncertain  whether  any  thing  would  become  due  in 
money  from  the  company  to  the  defendant;  and  that  the  com- 
pany therefore  could  not  be  charged.^ 

§  552.  But  while  the  proposition  that  a  debt  not  actually  and 
at  all  events  payable,  but  depending  on  a  contingency,  cannot  be 
attached,  is  sufficiently  simple,  the  application  of  it  to  particular 
cases  which  raise  the  question  of  contingent  or  not,  is  not  always 
of  easy  solution.  "  Thus  much,  however,"  in  the  language  of 
the  Supreme  Court  of  Massachusetts,  "  may  be  considered  as 
clear,  that  the  contingency  must  affect  the  property  itself,  or  the 
debt  which  is  supposed  to  exist,  and  not  merely  the  title  to  the 
property  in  the  possession  of  the  trustee,  or  his  liability  on  a 
contract  which  he  has  actually  made,  but  the  force  or  effect  of 
which  is  in  litigation.  Examples  showing  the  distinction  may  be 
taken  from  the  cases  decided.  Thus  the  wages  of  a  sailor  on 
board  a  vessel  which  has  not  arrived,  are  not  liable  to  the  process, 

1  Burke  v.  Whitcomb,  13  Vermont,  »  Martz  v.  Detroit  F.  &  M.  Ins.  Co., 
421.                                                                   28  Michigan,  201. 

2  Tucker  r.  Clisby,  12  Pick.  22.  See 
Bates  V.  New  Orleans,  &c.,  II.  R.  Co.,  4 
Abbott  Pract.  72. 

[471] 


§  552  garnishee's   liability   as   a   debtor.       [chap.  XXV. 

because  whether  due  or  not  depends  on  the  arrival  of  the  vessel.^ 
So,  shippers  of  a  cargo,  under  contract  with  the  owner  of  the 
ship  tliat  he  shall  have  a  share  of  the  net  profits  arising  on  the 
cargo,  are  not  liable  as  trustees  until  the  termination  of  the  voy- 
age, as  it  is  altogetlier  contingent  whether  any  thing  will  ever  be 
due.2  There  are  many  other  cases  of  a  similar  character,  but 
these  two  are  sufficiently  distinct  to  show  what  is  intended  in 
the  decisions  by  the  term  contingent^  that  is,  an  uncertainty 
whether  any  thing  will  ever  come  into  the  hands  of  the  trustee,  or 
whether  he  will  ever  be  indebted  ;  the  uncertainty  arising  from 
the  contract,  express  or  implied,  between  the  debtor  and  the 
trustee.  This  principle  has  never  been  applied  to  a  case  where 
proj^erty  is  actually  in  the  possession  of  the  trustee  claimed  by 
the  debtor,  his  right  to  it  being  in  controversy,  nor  to  demands 
against  the  trustee  himself  in  the  nature  of  a  debt  due  tg  the  de- 
fendant, which,  however,  may  be  in  dispute  between  them.  In 
such  cases  the  process  is  considered  as  attaching,  and  is  postponed 
until  a  liability  to  the  debtor  is  ascertained."  ^ 

Therefore,  where  the  garnishee  answered  that  he  had  a  sum  of 
money  in  his  hands,  the  right  to  which  was  contested  between 
the  defendant  and  other  parties,  and  had  been  submitted  to 
referees,  the  court  held,  that  here  was  no  contingency  as  to  the 
property  but  merely  as  to  the  title,  and  that  such  contingency 
did  not  discharge  the  garnishee ;  and  that  the  proceedings  might 
be  postponed  until  it  should  be  ascertained  to  which  party  the 
money  belonged.^  So,  where  a  garnishee  has  purchased  certain 
property  of  the  defendant,  under  a  contract  to  pay  for  the  same 
within  a  stipulated  time,  unless  within  that  time  he  should  elect 
to  reconvey  the  property  ;  and,  before  the  expiration  of  the  time, 
and  before  he  had  elected  to  reconvey  the  property,  he  was  sum- 
moned as  garnishee  of  the  defendant ;  and'  objection  was  made 
to  his  being  charged,  on  the  ground  that  his  liability  depended 
on  a  contingency,  which  had  not  happened  when  he  was  gar- 
nished ;  it  was  held,  that  the  case  was  not  one  of  contingency 
such  as  to  exempt  the  garnishee  from  liability.^     So,  where  a 

1  Wentworth  v.  Whittemore,  1  Mass.  *  Thorndike  v.  DeWolf,  6  Pick.  120. 

471.  5  Smith    V.    Cahoon,   37   Maine,   281. 

'■^  Davis  V.  Ham,  3  Mass.  83  ;  Cutter  v.  The    following    are    the   views   of    the 

Perkins,  47  Maine,  557.  court :  "  At  the  time  of  the  service  of 

^  Thorndike  v.  DeWolf,  6  Pick.  120;  the  writ,  P.  (the  garnishee)  held  in  his 

Dwinel  t".  Stone,  30  Maine,  384;  Downer  hands  the  consideration   of  his   contract 

V.  Curtis,  25  Vermont,  650.  with   the  defendant.    By  that  contract 
[472J 


CHAP.  XXV.]  GENERAL   VIEWS.  §  553 

contractor  had  done  work,  the  payment  for  which  was,  by  the 
terms  of  the  contract,  to  be  made  on  the  estimate  and  certificate 
of  an  engineer ;  and  there  was  nothing  further  to  be  done  by  the 
contractor  to  entitle  him  to  be  paid  ;  it  was  held,  that  the  fact 
that  the  engineer's  estimate  and  certificate  had  yet  to  be  made, 
was  not  a  contingency  which  prevented  the  party  for  whom  the 
work  was  done  from  being  charged  as  garnishee  of  the  con- 
tra ctor.^ 

§  553.  As  the  attaching  plaintiff  can  acquire  no  other  or  greater 
rights  against  the  garnishee  than  the  defendant  has,  it  follows 
that,  though  the  garnishee  be  indebted  to  the  defendant,  yet  if 
there  be  any  thing  to  be  done  by  the  latter  as  a  condition  prece- 
dent to  his  recovering  his  debt  in  an  action  against  the  garnishee, 
the  plaintiff  cannot  obtain  judgment  against  the  garnishee  with- 
out performing  the  condition.  Thus,  where  a  railroad  company 
was  summoned  as  garnishee  of  one  who  had  contracted  to  do 
work  on  its  road,  and  it  appeared  that  the  contract  under  which 
the  work  was  done  provided  that  the  contractor  should  not  re- 
ceive the  amount  of  the  final  estimate  of  his  work,  until  he 
should  release,  under  seal,  all  claims  or  demands  upon  the  com- 
pany arising  out  of  the  contract ;  and  at  the  time  of  the  garnish- 
ment he  had  not  executed  such  a  release ;  it  was  held,  that 
the  company  could  not  be  charged  as  garnishee."^  So,  where  an 
executor  was  garnished  on  account  of  a  legacy  bequeathed  to 
the  defendant,  which  the  defendant  could  not  have  recovered 
without  giving  the  executor  a  refunding   bond;   the  executor 

he  had  his  election  to  restore  the  prop-  were  in  the  hands  of  the  supposed  trustee 
erty  purchased,  within  a  time  not  then  at  the  time  he  was  served  witli  the 
expired,  and  thereby  discharge  his  obli-  process.  In  this  case  it  was  otherwise, 
gations  to  pay  the  stipulated  price  in  The  right  to  decide  in  which  of  the  two 
money.  He  had  either  goods  or  credits  modes  provided  he  would  fulfil  his  agree- 
in  his  hands.  It  was  not  uncertain,  ment,  did  not  leave  his  liability  in  any 
whether  he  had  received  absolutely  the  degree  contingent,  and  he  cannot  with 
consideration  of  his  contract,  nor  whether  propriety  contend  that  he  was  not  trustee, 
he  was  absolutely  bound  to  fulfil  that  He  had  the  power  to  signify  his  election 
contract,  by  a  return  of  the  property  re-  to  return  the  property,  in  which  case  he 
ceived,  or  pay  its  agreed  equivalent ;  would  hold  the  property  subject  to  the 
but  the  manner  in  which  he  should  dis-  trustee  process,  in  the  same  manner  that 
charge  it  was  dependent  on  his  choice,  he  would  have  done,  had  he  been  bound 
This  is  not  the  contingency  referred  to  absolutely  to  return  the  property  within 
in  the  statute  cited  for  the  trustee.  And  the  time  specified  in  the  contract." 
in  the  cases  relied  upon  in  his  belialf,  the  *  Ware  u.  Gowen,  G5  Maine,  534. 
facts  were  such  as  to  leave  it  uncertain,  ^  Baltimore  &  Ohio  R.  R.  Co.  v.  Mc- 
whether  any   goods,   effects*,   or  credits  Cullough,  12  Grattan,  595. 

[473] 


§  554  garnishee's   liability   as   a   debtor.       [chap.  XXV. 

could  not  be  charged  as  garnishee  until  the  plaintiff  indemnified 
him.i  So,  where  a  party  contracted  to  perform  a  specified 
amount  of  labor,  and  the  performance  thereof  was,  by  the  terms 
of  the  contract,  a  condition  precedent  to  the  right  to  recover  pay 
therefor,  and  he  voluntarily  abandoned  the  work  before  it  was 
completed,  without  fault  upon  the  other  side  ;  it  was  held,  that 
he  was  not  entitled  to  recover  a  pro  rata  compensation  for  the 
amount  of  labor  performed  by  him  ;  and  that  the  party  for  whom 
the  work  was  done  could  not  be  charged  as  his  garnishee  in 
respect  thereof.^ 

§  553  a.  It  is  not  sufficient,  to  charge  a  garnishee,  to  show 
that  he  owes  something  to  the  defendant,  but  the  amount  owing 
must  be  shown  ;  otherwise  the  proper  foundation  for  a  judgment 
against  him  is  not  laid.^ 

§  554.  The  further  consideration  of  the  liability  of  a  garnishee, 
in  respect  of  indebtedness  to  the  defendant,  will  be  prosecuted 
in  the  succeeding  chapters  under  the  following  heads : 

I.  The  garnishee's  liability,  as  affected  by  the  time  when  his 
debt  to  the  defendant  is  payable. 

II.  As  affected  by  his  having  co-debtors,  and  by  the  number 
of  the  defendants,  and  the  number  of  his  creditors. 

III.  His  liability,  as  a  party  to  a  promissory  note. 

IV.  His  liability,  as  affected  by  pre-existing  contracts  with  the 
defendant  or  third  persons. 

V.  As  affected  by  a  fraudulent  attempt  by  the  defendant  to 
defeat  the  payment  of  his  debts. 

VI.  As  affected  by  an  equitable  assignment  of  the  debt. 

VII.  As  affected  by  the  commencement,  pendency,  and  com- 
pletion of  legal  proceedings  against  him,  by  the  defendant,  for 
the  recovery  of  the  debt. 

1  Ross  V.  McKinny,  2  Rawle,  227.  »  Marks    v.  Reinberg,   16    Louisiana 

2  Kettle  V.  Harvey,  21  Vermont,  301.  Annual,  348.  See  Poor  v.  Colburn,  57 
See  Otis  v.  Ford,  54  Maine,  104.  Penn.  State,  415. 

[474] 


CHAP.  XXVI.]      garnishee's   LIABILITY   AS   TO   TIME.  §  556 


CHAPTER     XXVI. 

THE   garnishee's  LIABILITY,  AS   AFFECTED  BY  THE  TIME  WHEN 
HIS    DEBT   TO   THE   DEFENDANT   IS   PAYABLE. 

§  555.  Though  the  doctrine  is  well  settled,  that  where  it  is 
contingent  whether  the  garnishee  will  ever  owe  the  defendant 
money,  he  cannot  be  made  liable,  it  by  no  means  follows,  that 
where  there  is  a  present  debt,  payable  in  the  future,  the  same  ex- 
emption exists.  Where  a  system  of  credit  is  so  extensively  es- 
tablished as  in  this  country,  it  would  greatly  impede  the  collection 
of  debts,  if  no  credits  of  a  defendant  could  be  reached  but  those 
actually  due  and  payable  at  the  time  of  the  garnishment.  Hence, 
in  some  States,  it  has  been  considered  proper  to  provide  by  ex- 
press enactment  for  the  attachment  of  debts  not  falling  due  until 
after  the  service  of  the  writ  ;  though  on  general  principles  such 
provision  would  seem  to  be  unnecessary,  since  the  almost  uni- 
form current  of  decision  has  been  in  favor  of  the  operation  of 
the  garnishment  in  such  cases. 

§  556.  In  Tennessee,  it  has  been  held  that  a  debt  not  due  can- 
not be  attached.  In  the  case  in  which  this  decision  was  had,  it 
appeared  that  the  garnishee  owed  the  defendant  money,  which 
was  not  due  at  the  time  of  the  garnishment,  but  became  due  be- 
tween that  time  and  the  filing  of  the  answer,  and  was  paid  at 
maturity.  The  court  said :  "  By  the  provisions  of  the  act,  the 
person  is  summoned  to  answer  what  he  is  indebted  at  the  time 
of  the  summons.  There  is  no  equitable  construction  by  which 
the  court  can  feel  authorized  to  go  beyond  the  words  of  the  act, 
to  reach  a  case  of  indebtedness  ;  the  act  has  been  taken  with 
strictness."  ^  This  is  believed  to  be  the  only  State  in  which  this 
position  is  taken,  and  from  the  report  of  this  case  we  are  justified 
in  supposing  that  the  general  principles  bearing  on  the  matter 
were  not  presented  by  counsel,  or  considered  by  the  court.     The 

1  Childress  v.  Dickins,  8  Yerger,  113;  McMinn  v.  Hall,  2  Tennessee,  .328. 

[475] 


§  558  garnishee's   liability   as   to   time.       [chap.  XXVI. 

court  say  :  "  The  person  is  summoned  to  answer  what  he  is  in- 
debted at  the  time  of  the  summons  ;  "  and,  confounding  indebt- 
edness with  time  of  payment,  they  consider  that,  because  the 
debt  was  not  actually  due  and  payable  at  the  time  the  garnishee 
was  summoned,  it  was  no  debt.  They  overlook  the  fact  that  the 
law  everywhere  recognizes  the  existence  of  dehitum  in  prcesenti^ 
solvendum  in  fttturo^  and  that  one  who  has  engaged  to  pay  an- 
other a  sum  of  money  at  a  future  time  is  as  much  a  debtor  as  he' 
whose  time  of  payment  has  already  passed.  It  is  sufficient  to 
say,  that  this  decision  is  adverse  to  the  entire  adjudications  else- 
where, in  England  and  this  country,  and  must  be  considered  as 
overborne  by  the  weight  of  authority,  as  well  as  by  principle. 

§  557.  Thus,  by  the  custom  of  London,  money  due  to  a  de- 
fendant from  a  garnishee,  but  not  payable  at  the  time  of  the 
garnishment,  may  be  attached,  and  judgment  may  be  rendered 
in  respect  thereof  at  once,  but  no  execution  shall  issue  till  the 
time  of  payment  arrives.^  The  same  doctrine  has  been  announced 
in  Maine,2  Massachusetts,^  Pennsylvania,*  Maryland,^  North  Car- 
olina,^  Alabama,''  Indiana,^  and  Arkansas,^  and  may  be  regarded  as 
firmly  established.  And  where  the  debt  exists,  but  the  time 
when  it  may  become  payable  depends  upon  a  notice  to  be  given 
by  the  defendant  to  the  garnishee,  it  may  be  attached,  though  no 
such  notice  have  been  given.^° 

§  558.  A  singular  case  occurred  in  Vermont,  where  one  sum- 
moned as  garnishee  had  given  the  defendant  a  promissory  note, 
in  which  was  embodied  a  clause  in  these  words  :  "  I  am  at  my 
option  about  paying  the  principal  of  this  note,  while  I  pay  the 
interest  annually."  The  garnishee  claimed  that  this  clause  ex- 
empted him  from  liability,  under  a  statute  which  provided  that 
one  may  be  held  liable  as  garnishee  for  "  money  due  to  the  prin- 
cipal defendant,  before  it  has  become  payable,"  but  "  shall  not  be 
compelled  to  pay  it  before  the  time  appointed  therefor  by  the 

1  Priv.  Lond.  261,  262.  ^  Branch   Bank   v.   Poe,  1   Alabama, 

2  Sayward  v.  Drew,  6  Maine,  263.  396  ;  Cottrell  v.  Varnum,  5  Ibid.  229. 
8  Willard  V.  Slieafe,  4  Mass.  235.  »  King  w.  Vance,  46  Indiana,  246. 

*  Walker  v.   Gibbs,  2  Dallas,  211;  1  ^  Dunnegan   v.   Byers,    17  Arkansas, 

Yeates,   255 ;    Fulweller  v.   Hughes,    17  492. 

Penn.  State,  440.  ^^  Clapp  v.   Hancock   Bank,  1   Allen, 

5  Steuart  v.  West,  1  Harris  &  Johnson,  394 ;  Nichols  v.  Scofield,  2  Rhode  Island, 

536.  123. 

®  Peace  v.  Jones,  3  Murphey,  256. 
[476J 


CHAP.  XXVI.]       garnishee's   LIABILITY   AS   TO   TIME.  §  559 

contract."     The  court,  however,  very  properly  held  otherwise, 
and  charged  the  garnishee.^ 

§  559.  But  in  order  to  attach  a  debt  payable  in  futuro,  it  must 
be  a  certain  debt,  which  will  become  payable  upon  the  lapse  of 
time,  and  not  a  contingent  liability,  which  may  become  a  debt  or 
not,   on   the  performance  of   other   acts,  or   the   happening  of 
some  uncertain  event.     Thus,  where  it  was  sought  to  attach  the 
wages  of  an  employee  in  a  factory,  and  it  appeared  that  when  he 
became  such  he  signed  a  written  agreement  that  the  company  might 
pay  his  wages  at  such  times  and  in  such  parts  as  it  might  from 
time  to  time  elect ;  that  he  would  continue  in  its  employment, 
unless  the  contract  should  be  terminated  by  mutual  assent,  until 
the  expiration  of  thirty  days'  notice  of  his  intention  to  leave  ; 
and  that  if  he  should  leave  without  first  giving  and  "  working 
out "  such  notice,  all  wages  should  be  liable  to  forfeiture  to  the 
company  ;  and  that  this  contract  remained  in  force,  and  no  notice 
had  been  given  by  the  defendant  of  his  intention  to  leave  ;  it 
was  held,  that  it  was  not  a  case  of  debitum  in  prcesenti,  solvendum 
infuturo;  that  nothing  was  due  to  the  defendant  until  he  should 
give  and  "  work  out  "  the  notice  ;  and   that  it  would  make  no 
difference  that  the  wages  were  reckoned  by  the  day,  and  that,  as 
a  matter  of  accommodation  and  favor,  the  practice  of  the  com- 
pany had  been  to  make  advances  or  payments  on  account  at  reg- 
ular periods.^     So,  where  one  contracted  to  do  certain  work  for 
a  city,  by  a  certain  day,  for  which  he  was  to  receive  a  stipulated 
sum ;  and  before  the  arrival  of  the  day  of  completion,  the  city 
was  summoned  as  his  garnishee  ;  it  was  held,  that  the  contract 
was  entire  and  not  apportionable  ;  that  the  city  became  liable  for 
the  work  when  it  was  completed,  and  not  before  ;  and  that  no 
debt  existed  at  the  time  of  the  garnishment.^     So,  where  the 
salary  of  a  minister  was  payable  quarterly,  with  an  agreement 
that,  if  he  entered  on  a  quarter  and  did  not  complete  it,  nothing 
should  be  due  for  such  service ;  and  the  minister,  in  the  middle 
of  a  quarter,  tendered  his  resignation,  which  was  accepted ;  and 
the  parish  afterwards  voted  to  pay  him  pro  rata  for  the  time  of 
his  service,  after  the  commencement  of  the  quarter  ;  it  was  held, 

1  Fay  V.  Smith,  25  Vermont,  610.  »  Coburn  v.  Hartford,  38  Conn.  290. 

2  Potter  V.  Cain,  117  Mass.  238. 

[477] 


§  559  garnishee's   liability   as   to   time.       [chap.  XXVI. 

that  the  parish  was  not  liable,  as  garnishee  of  the  minister,  on  a 
process  served  after  the  resignation  and  before  the  passing  of  the 
vote  ;  because  when  the  process  was  served  there  was  no  debt, 
and  the  subseqnent  vote  could  not  relate  back  so  as  to  make  a 
debt  at  that  time.^ 

1  Wyman    v.   Ilichborn,   6    Gushing,  264.     See  Baltimore  &  Ohio  R.  R.  Co.  v. 
Gallahue,  14  Grattan,  663. 

[478] 


CHAP.  XXVII.]  GABNISHEE's   LIABILITY,   ETC.  §  561 


CHAPTER     XXVII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  HIS  HAVING  CO- 
DEBTORS,  AND  BY  THE  NUMBER  OF  THE  DEFENDANTS,  AND 
THE  NUMBER  OF   HIS  CREDITORS. 

§  560.  I.  His  liaUlity,  as  affected  hy  Us  having  Co-debtors. 
Where  several  persons  are  jointly  and  severally  liable  for  a  debt, 
any  one  of  them  may  be  garnished,  and  subjected  to  a  judgment 
for  the  whole  amount  of  the  debt,  in  the  same  manner  that  he 
might  be  sued  by  the  defendant  without  his  co-debtor  being  joined 
in  the  action.^  But  it  is  unadvisable  in  any  case  to  garnish  one 
of  several  joint  and  several  debtors,  without  joining  the  others, 
if  practicable  ;  for  a  payment  by  one  not  garnished  will  certainly 
discharge  the  liability  of  the  garnishee,  whether  made  before  or 
after  the  garnishment.  Thus,  where  it  appeared  that  the  gar- 
nishee and  another  had  executed  a  note  to  the  defendant,  prom- 
ising to  deliver  to  him  at  a  certain  time  five  tons  of  hay,  and, 
before  the  note  became  due,  one  of  the  makers  was  garnished, 
and  afterwards,  when  it  became  due,  the  other  maker  paid  it, 
the  court  held  this  payment  to  be  a  discharge  of  the  garnishee.^ 

§  561.  Where  two  or  more  persons  are  jointly  liable  for  a  debt, 
if  part  of  them  only  are  garnished,  they  may,  in  Massachusetts, 
take  advantage  of  the  non-joinder  in  abatement,  but  the  process 
will  not,  because  of  the  non-joinder,  be  considered  wholly  void.^ 
In  New  Hampsiiire,  however,  where  one  was  summoned  as  gar- 
nishee, and  it  appeared  from  liis  answer  that  he  was  not  indebted 
to  the  defendant  in  his  individual  capacity,  but  as  a  partner  in  a 

1  Travis  v.  Tartt,  8  Alabama,  574 ;  advantage  of  the  non-joinder  in  the  early 
Speak  V.  Klnsey,  17  Texas,  301 ;  Ma-  stage  of  the  proceedings.  After  his  fail- 
comber  V.  Wright,  35  Maine,  156.  ure  to  answer,  and  the  issue  of  a  sdre 

^  Jevvett  V.   Bacon,  6  Mass.  60.     See  facias  against  him,  consequent  on  such 

Robinson  v.  Hall,  3  Metcalf,  301 ;  Sabin  failure,  he   cannot   set   up  this  defence. 

V.  Cooper,  15  Gray,  532.  Hoyt  v.  Robinson,  10  Gray,  371 ;  Sabin 

•*  Hathaway  v.  Russell,  16  Mass.  47-3.  v.  Cooper,  15  Ibid.  532. 
But  in  such  case  the  garnishee  must  take 

[479] 


§  561  G.UINISHEE's    liability  [chap.  XXVII. 

firm,  the  other  members  of  which  were  not  joined  with  him  in  the 
writ,  it  was  decided  that,  because  of  the  non-joinder  of  the  other 
partner,  tlie  garnishee  could  not  be  charged.^  And  it  was  so 
hehl  in  Vermont,^  lowa,^  Georgia,^  and  the  District  of  Cohimbia.^ 
In  Pennsylvania,  however,  while  it  is  admitted  that  in  common 
suits  between  creditors  and  debtors,  the  latter  may  plead  in 
abatement  that  a  partner  was  not  named  in  tlie  writ,  yet  that  the 
reason  of  the  plea  in  those  cases  does  not  apply  to  attachments; 
and  such  a  plea  by  a  garnishee  was  disregarded.^  In  Connecti- 
cut the  following  case  occurred:  A.  &  B.,  a  firm  in  New  York, 
and  C,  D.,  and  E.,  a  firm  in  Connecticut,  entered  into  a  joint 
real  estate  speculation,  the  net  profits  of  which  were  to  be  equally 
divided  between  the  two  firms.  The  title  to  the  land  was  con- 
veyed to  B.,  of  the  former  firm,  and  C,  of  the  latter,  as  agents 
of  their  respective  firms ;  and  all  transfers  and  conveyances 
thereof  were  made  by  them  ;  and  C.  was  the  treasurer  of  the 
speculation,  and  received  and  paid  out  all  moneys  connected 
therewith.  C,  on  behalf  of  the  members  of  both  firms,  con- 
tracted with  M.  for  the  erection  of  a  building  ;  but  M.  was  not 
at  any  time  informed  that  A.  and  B.  were  interested  in  the  spec- 
ulation, or  in  the  contract  with  him.  He  performed  the  work, 
and  there  became  due  him  therefor,  $2,030.  Thereafter,  suits  by 
attachment  were  brought  by  several  parties  against  M.,  in  which 
all  the  partners  in  the  two  firms,  except  A.,  were  garnished,  and 
judgments  having  been  obtained  therein,  and  executions  issued, 
and  demand  made  upon  C,  he  paid  the  amounts  of  the  judg- 
ments. Afterwards  H.  brought  suit  against  M.,  and  garnished 
all  the  members  of  both  firms,  and  upon  the  judgment  therein 
obtained  C.  paid,  as  garnishee,  $121.85,  which  was  not  sufiicient 
to  satisfy  H.'s  judgment.  Thereupon  H.  claimed  his  right  to  a 
further  payment  from  the  members  of  the  firm,  which  they 
resisted,  claiming  that  the  previous  payments  made  by  C,  un- 
der the  prior  judgments,  were  valid,  and  constituted  pro  tanto  a 
discharge  of  their  liability.  H.  contended  that  the  non-joinder 
of  A.  as  garnishee  in  those  suits  might  have  been  set  up  by  the 
garnishees  as  a  defence,  and  therefore  must  be  available  in  H.'s 

1  Rix  V.  Elliott,  1  New   Hanip.    184 ;  »  Wilson  v.  Albright,  2  G.  Greene,  125. 

Hudson   V.  Hunt,  5  Ibid.  538;  Atkins  v.  *  Hoskins  y.  Johnson,  24  Georgia,  625. 

Prescott,  10  Ibid.  120.  ^  EUicott  v.    Smith,  2   Cranch  C.  C. 

•^  Pettes  V.  Spalding,  21  Vermont,  66.  643. 

See  Wellover  i;.  Soule,  30  Michigan,  481.  *>  Brealsford  v.  Meade,  1  Yeates,  488. 

[480] 


CHAP.  XXVII.]  Vi'lTB.   CO-DEBTORS,   ETC.  §  564 

favor  against  the  validity  of  the  garnishments  in  which  A.'s  name 
was  omitted.  This  position  was  not  sustained,  and  the  payments 
made  by  C.  were  hekl  a  valid  defence  against  any  further  liability 
of  the  members  of  the  firms  as  garnishees.^ 

§  562.  But  where  the  garnishees  were  partners  in  a  firm,  part 
of  the  members  of  which  resided  in  another  State,  and  the  names 
of  all  the  members  were  contained  in  the  writ,  it  was  held  that, 
as,  if  an  action  had  been  brought  against  them,  a  service  on  those 
within  the  jurisdiction  would  be  sufficient,  so  the  garnishment  of 
the  resident  partners  was  sufiicient  to  hold  the  funds  of  the  de- 
fendant in  the  hands  of  the  firm.^ 

§  563.  And  in  all  such  cases,  as  well  where  the  co-debtors  not 
summoned  reside  within  the  State,  and  the  garnishees  do  not 
object  on  that  account  to  answer,^  as  where  those  not  summoned 
reside  out  of  the  State,*  if  it  appear  by  the  answers  that  time  is 
wanted  to  ascertain  the  condition  of  the  funds,  or  the  liability  of 
any  of  the  other  partners,  who  are  not  summoned,  on  account  of 
any  acceptance  or  engagement  they  have  entered  into,  or  of  any 
suit  brought  against  them,  the  process  will  be  stayed,  until  full 
information  can  be  obtained.^ 

§  564.  There  is,  however,  a  case  which  constitutes  an  exception 
to  the  rule  that  resident  partners  may  be  garnished  and  the  funds 
in  the  hands  of  the  firm  thereby  attached,  though  other  members 
of  the  firm  reside  in  another  State.  The  exception  is,  where  part 
of  the  firm  reside  in  this  country  and  part  in  a  foreign  country. 
There,  it  has  been  decided  that  the  resident  partners  cannot  be 
held  as  garnishees.  The -question  arose  on  the  following  state  of 
facts :  P.,  a  resident  of  Boston,  and  G.,  a  resident  of  Havana, 
were  general  partners  under  the  firm  of  P.  &  G.,  having  a  house 
established  and  doing  business  in  the  latter  city.  B.,  the  defend- 
ant, deposited  in  the  hands  of  G.,  at  Havana,  a  sum  of  money, 
taking  a  receipt  therefor  in  the  name  of  P.  &  G.  Afterwards 
P.  was  summoned  in  Boston  as  garnishee  of  B.,  and  when  he  was 

1  Hawley  v.  Atherton,  39  Conn.  309.  ^  Hatliaway  v.  Russell,  16  :\rass.  473. 

■i  Parker  v.  Danforth,   16  Mass.  299 ;  *  Parker  v.  Danforth,  16  Mass.  299. 

Atkins  V.  Prescott,  10  New  llamp.  120;  ^  Parker  v.  Danforth,  16  Mass.  299; 

Warner  v.  Perkins,  8  Cusiiing,  518;  Peck  Cushing's  Trustee  Process,  §  92. 


V.  Barnum,  24  Vermont,  75. 


31  [481] 


§  565  garnishee's  liability  [chap,  xxvii. 

summoned  the  money  still  remained  in  the  hands  of  G.,  at  Ha- 
vana. The  court,  upon  the  following  grounds,  decided  that  P. 
could  not  be  charged  as  garnishee  :  "  The  debt  from  the  house  to 
B.  was  contracted  in  Havana,  and  was  there  to  be  accounted  for 
according  to  the  terms  of  the  receipt ;  and  it  would  be  attended 
with  manifest  inconvenience  to  commercial  men  if,  when  they 
have  received  property  on  credit  in  one  country,  they  could  be 
held  accountable  to  a  stranger  in  another ;  when  the  terms  upon 
which  they  received  it  might  be  satisfied  abroad,  without  a  possi- 
bility of  showing  it  here. 

"  Besides,  their  creditor  abroad  may  have  the  means  of  com- 
pelling payment  in  the  country  where  the  contract  was  made  ; 
and  it  is  altogether  unknown  to  us,  whether  a  judgment  of  this 
court,  founded  on  this  process,  would  be  respected  by  a  foreign 
tribunal,  who  might  have  perfect  evidence  of  the  existence  of 
the  debt,  without  any  satisfactory  proof  that  it  had  ever  been 
discharged. 

"  There  is  also  a  diflficulty  in  considering  one  partner  of  a  house 
as  the  trustee,  when  the  other  partner  abroad  may,  without  his 
knowledge,  have  discharged  the  debt,  or  come  under  some  lia- 
bility which  would  give  the  house  an  equitable  lien  upon  it. 
Debtors,  who  are  copartners  here,  must  all  be  summoned  and 
made  parties  to  the  suit.  It  is  true,  this  cannot  be  done  where 
some  of  them  have  become  domiciled  abroad.  But  this  difficulty 
will  suggest  doubts,  whether  a  house  so  circumstanced  can  be 
lawfully  made  the  subjects  of  this  process.  At  any  rate,  when 
the  debt  is  contracted  abroad,  with  a  view  to  the  agency  of  the 
foreign  partner,  or  an  expectation  that  it  will  be  paid  or  negoti- 
ated by  him,  we  think  the  partner  at  home  cannot  be  charged  as 
trustee."  ^ 

§  564  a.  Where  a  garnishment  proceeding  is  instituted  against 
a  firm,  the  names  of  the  individual  members  of  it  must  be  set  out 
in  the  process.  A  proceeding  against  "  the  firm  of  "  A.,  B.,  & 
Co."  charges  no  member  of  it.^ 

§  565.  Where  several  persons,  members  of  a  partnership,  are 
summoned  as  garnishees,  and  one  of  them  answers,  admitting  a 
debt  due  from  the  firm  to  the  defendant,  it  is  held,  in  Mississippi, 

I  Kidder  v.  Packard,  13  Mass.  80.  ^  Reid  v.  McLeod,  20  Alabama,  576. 

[482] 


CHAP.  XXYIL]  with   CO-DEBTORS,    ETC.  §  567 

that  his  answer  will  authorize  a  judgment  against  all  the  part- 
ners.^ 

§  565  a.  Where  several  persons  are  summoned  under  the  same 
writ,  as  garnishees  of  the  same  defendant,  and  they  are  not  jointly- 
indebted  to  the  latter,  neither  one  can  defend  against  his  liability 
by  showing  that  he  was  not  jointly  indebted  with  the  other  gar- 
nishees: the  liability  of  each  must  be  determined  by  his  individual 
relations  to  the  defendant.^ 

§  566.  II.  Si%  liability  as  affected  hy  the  number  of  the  Defend- 
ants^ and  the  number  of  his  Creditors.  Where  there  are  several 
defendants,  the  property  of  each  is  of  course  liable  for  the  whole 
debt.  In  such  case,  if  it  appear  that  the  garnishee  is  indebted 
to  one  or  more  of  the  defendants,  though  not  to  all,  he  will  be 
charged.^  But  where  a  garnishee  is  indebted  to  several  persons 
jointly,  an  important,  and,  in  one  of  its  aspects,  a  vexed,  ques- 
tion arises,  whether,  in  respect  of  that  indebtedness,  he  can  be 
charged,  as  garnishee  of  part  of  his  creditors.  This  question  will 
be  considered  under  two  heads  :  I.  In  relation  to  Partnerships ;  and 
II.  In  relation  to  other  cases  of  joint  creditors  of  the  garnishee. 

§  567.  I.  Partnerships.  The  attachment  of  a  debt  due  to  a 
copartnership,  in  an  action  against  one  of  the  partners,  is  justly 
distinguishable  from  the  seizure  on  attachment  or  execution  of 
tangible  effects  of  the  firm  for  the  same  purpose.  Hence  we 
find  the  Suj)reme  Court  of  Alabama  holding,  in  the  same  case, 
that  partnership  property  may  be  sold  to  pay  the  debt  of  one 
partner,  but  that  a  debt  due  to  a  firm  cannot  be  taken  by  gar- 
nishment for  that  purpose.  The  reason  assigned  is,  that,  in  the 
case  of  a  sale,  the  property  is  not  removed,  and  cannot  be  appro- 
priated until  all  liens  upon  it,  growing  out  of  or  relating  to  the 
partnership,  are  discharged ;  while  in  the  other  case,  the  judg- 
ment against  the  garnishee,  if  acquiesced  in,  changes  the  right 
of  property,  and  devests  the  copartner's  title  to  the  property  at- 
tached; which  cannot  be  done  so  long  as  the  partnership  accounts 
remain  unsettled,  or  its  debts  unpaid.*     Much  force  is  given  to 

1  Anderson  v.  Wanzer,  5  Howard  Stone  v.  Dean,  5  New  Hamp.  502;  Par- 
(Mi.),  587.  ker  v.  Guillow,  10  Ibid.  103;  Caignett  v. 

2  Curry  v.  Woodward,  53  Alabama,  Gilbaud,  2  Yeates,  35 ;  Locket  v.  Child, 
371.  11  Alabama,  640. 

3  Thompson  v.  Taylor,  13  Maine,  420;  *  Winston  v.  Ewing,  1  Alabama,  129. 

[4«3] 


§  509  garnishee's  liability  [chap,  xxvii. 

this  reason,  when  it  is  remembered  that  garnishment  is  essentially 
a  legal  proceeding,  and  not  adapted  for  the  ascertainment  and 
settlement  of  equitable  rights  between  the  garnishee  and  the 
defendant ;  and  that  a  court  of  law  has  no  power  to  impound  the 
debt,  until,  b}^  an  adjustment  of  all  the  partnership  affairs,  it 
shall  appear  whether  the  defendant  has  any  and  what  interest  in 
the  general  surplus,  or  in  the  particular  debt  so  impounded.^ 

§  568.  In  Massachusetts,  this  question  came  up  at  an  early  day, 
and  the  court,  while  deciding  that  the  garnishee  could  not  be 
charged,  intimated  that  if  a  partner  of  the  firm  were  summoned, 
and  disclosed  that  the  defendant  had  an  interest  in  the  partner- 
ship effects  after  all  the  partnership  debts  were  paid,  the  garnishee 
might  be  held.^  There  are,  however,  great  and  apparently  insu- 
perable difficulties  in  the  way  of  snch  an  investigation,  which 
will  immediately  occur  to  the  legal  mind,  and  demonstrate  its 
impracticability.  The  same  point  came  up  before  Justice  Story, 
on  the  circuit,  in  a  case  where,  in  a  suit  against  G.  &  G.,  the  gar- 
nishee answered  that  he  was  indebted  to  G.  &  L.,  one  of  the 
defendants  being  a  member  of  both  firms.  The  court,  in  deciding 
against  the  liability  of  the  garnishee,  observed  :  "  In  order  to 
adjudge  the  trustee  responsible  in  this  suit,  it  must  be  decided, 
that  the  funds  of  one  partnership  may  be  applied  to  the  payment 
of  the  debts  of  another  partnership,  upon  the  mere  proof  that 
the  principal  debtor  has  an  interest  in  each  firm.  If  this  be  cor- 
rect, it  will  follow  that  a  separate  creditor  of  one  partner  will 
have  greater  equitable,  as  well  as  legal  rights,  than  the  partner 
himself  has.  The  general  rule  undoubtedly  is,  that  the  interest 
of  each  partner  in  the  partnership  funds  is  only  what  remains 
after  the  partnership  accounts  are  taken ;  and  unless  upon  such 
an  account  the  partner  be  a  creditor  of  the  fund,  he  is  entitled 
to  nothing.  And  if  the  partnership  be  insolvent,  the  same  effect 
follows."  3 

§  569.  In  Connecticut,  this  subject  was  elaborately  and  ably 
considered,  in  a  case  where  there  were  three  members  of  a  firm 
to  which  the  garnishee  was  indebted,  and  he  was  garnished  in  a 

1  Johnson  v.  King,  G  Humphreys,  233.     Waltham,     18    Pick.    451 ;    Bulfinch    v. 

2  Fisk  V.   Herrick,  6  Mass.  271;  Up-     Winchenbach,  3  Allen,  161. 

ham  V.  Naylor,   9   Ibid.   490 ;  Hawes  v.  '■>  Lyndon  v.  Gorham,  1  Gallison,  367. 

See  Upham  v.  Naylor,  9  Mass.  490. 

[484] 


CHAP.  XXVn.]  WITH   CO-DEBTOES,   ETC.  §  569 

suit  against  one  of  them.  There  the  court  said :  "  The  creditor 
can,  by  a  foreign  attachment,  take  nothing  but  what  the  abscond- 
ing debtor  was  entitled  to  ;  and  the  property  of  one  man  ought  not 
to  be  taken  to  pay  the  debt  of  another.  But  the  rule  claimed  by 
the  plaintiffs  would  violate  both  these  principles.  It  is  well 
known,  that  in  partnerships  the  effects  do  not  usually  belong  to 
the  partners  equally,  in  proportion  to  the  number.  Sometimes,  one 
will  advance  the  capital,  which  is  to  be  returned,  while  the  other 
is  to  transact  the  business,  and  the  profits  only  are  to  be  shared 
between  them.  The  effects  might  be  wanted,  not  only  to  pay 
the  partnership  debts,  but,  on  a  settlement  of  the  accounts,  the 
partner  in  the  execution  might  be  a  debtor  of  the  partnership. 
If,  then,  we  consider  them  tenants  in  common,  and  permit  a  cred- 
itor to  sell  one-half  to  pay  the  separate  debt  of  one  partner,  we 
shall,  in  many  instances,  suffer  the  property  of  one  man  to  be 
taken  to  pay  the  debts  of  another  ;  and  give  to  a  separate  cred- 
itor of  a  partner  a  right  over  the  effects  of  a  partnership,  which 
such  partner  could  not  exercise  ;  and  if  the  purchaser  should  be 
allowed  to  take  possession  of  the  effects,  he  might  dissolve  or 
destroy  the  partnership. 

"  It  may  be  asked,  on  what  ground  could  the  judgment  in  this 
case  be  rendered  for  07ie-third  of  the  debt  due  from  the  defend- 
ants to  the  partnership,  of  which  the  absconding  debtor  was  one  ? 
There  was  no  evidence  respecting  the  state  of  the  partnership 
concerns ;  what  capital  each  partner  advanced ;  what  each 
owned  ;  and  whether  the  partnership  was  solvent.  Suppose  the 
whole  debt  due  from  the  garnishee  should  be  wanted  to  pay  the 
partnership  debts;  or  that  the  defendant  should  be  found  a 
debtor,  on  settling  his  accounts ;  then  the  judgment  could  not 
be  right.  While  the  interest  of  the  defendant  was  a  matter  of 
uncertainty,  how  could  a  judgment  be  rendered  for  a  sum 
certain  ? 

"  It  is,  however,  insisted  that  the  garnishee  is  bound  to  state 
the  accounts  of  the  defendant  with  the  partnership,  and  ascertain 
the  balance  due  to  the  defendant.  But  this  would  be  to  require 
an  impossibility ;  for  he  has  no  control  of  their  books,  and  no 
possible  legal  mode  of  compelling  a  settlement  of  their  accounts. 

"  It  is  further  said,  if  the  plaintiffs  have  recovered  more  than 
the  proportion  of  the  defendant  in  this  debt,  and  it  should  be 
wanted  for  the  payment  of  partnership  debts,  the  other  partners 

[485] 


§  570  garnishee's  liability  [chap,  xxvii. 

may  call  them  to  account,  and  recover  back  such  money.  At 
this  rate,  a  judgment  may  be  rendered  in  favor  of  a  man  for  a 
sum  certain,  with  a  liability  to  refund  the  whole,  or  a  part  of  it, 
on  some  contingency.  It  is  sufficient  to  state  the  proposition,  to 
show  the  absurdity  of  it.  What  right  can  a  court  have  to  say, 
that  a  certain  part  of  a  debt  due  to  a  partnership  may  be  taken 
to  pay  the  private  debt  of  a  partner,  in  a  suit  where  the  partners 
are  not  parties  ;  and  then,  if  wanted  to  pay  the  debts  of  the 
partnership,  to  oblige  them  to  resort  to  the  creditor  ? 

"  But  it  further  appears  to  me,  from  the  nature  of  partner- 
ships, that  one  partner  cannot  have  a  separate  right  in  any  par- 
ticular debt  or  article  of  property,  belonging  to  the  partnership, 
liable  to  his  individual  debt;  but  all  the  effects  are  a  joint 
interest ;  and  each  partner  can  have  a  separate  interest  only  in 
his  share  upon  the  winding  up  and  settlement  of  the  partnership 
concerns."  ^ 

§  570.  The  position  taken  in  those  decisions  is  supported  by 
the  courts  of  New  Hampshire,^  Vermont,^  New  York,*  Louisiana,^ 
Mississippi,^  Tennessee,"  Ohio,^  and  Missouri.^  In  Maine,^" 
Pennsylvania,!!  Maryland,!^  ^nd  South  Carolina,!^  the  contrary 
doctrine  prevails ;  but  in  the  reported  cases  in  those  States  we 
look  in  vain  for  any  substantial  foundation  of  reason  or  expedi- 
ency upon  which  it  can  rest,  or  for  any  views  calculated  to  shake 
confidence  in  the  conclusion,  that  partnership  credits  can  in  no 
case  be  taken,  by  garnishment,  to  pay  the  individual  debt  of  one 
member  of  a  firm.^* 

1  Church  V.  Knox,  2  Conn.  514.     See  Missouri,  467 ;   Sheedy  v.   Second  Nat. 

the   able   concurring  opinion  of  Brain-  Bank,  62  Ibid.  17. 

AED^  J.  1"  Whitney  v.  Munroe,  19  Maine,  42 ; 

'i  Atkins  V.  Prescott,  10  New  Hamp.  Thompson  v.  Lewis,  34  Ibid.  167  ;  Smith 

120.  V.  Cahoon,  37  Ibid.  281 ;  Burnell  v.  Weld, 

3  Towne  v.  Leach,  32  Vermont,  747.  50  Ibid.  423 ;  Parker  v.  Wright,  66  Ibid. 

4  Barry  v.  Fisher,  39  Howard   Pract.  392. 

521.  11  McCarty  v.  Emlen,  2  Dallas,  277; 

5  Smith  V.  McMicken,  3  Louisiana  2  Yeates,  100 ;  Lewis  v.  Paine,  1  Legal 
Annual,  319 ;  Thomas  v.  Lusk,  13  Ibid.     Gazette  R.  508. 

277.  1-  Wallace  v.  Patterson,  2  Harris  &  Mc- 

t>  Mobley  v.  Lonbat,  7  Howard  (Mi.),  Henry,  463. 

318 ;  Williams   v.   Gage,  40  Mississippi,  '^  Schatzill  v.  Bolton,  2  McCord,  478 ; 

777.'  Chatzel  v.  Bolton,  3  Ibid.  33. 

^  Johnson  v.  King,  6  Humphreys,  233.  "  The    Supreme  Court  of   California, 

8  Myers  v.  Smith,  29  Ohio  State,  120.  while   holding   that,  under   the   laws   of 

3  Kingsley  v.   Missouri  Fire   Co.,  14  that   State,  partnership  credits   may  be 
[486] 


CHAP.  XXVir.]  WITH   CO-DEBTOES,    ETC.  §  572 

§  571.  But  when  the  partnership  has  been  dissolved  by  the 
death  of  one  or  more  partners,  leaving  one  survivor,  it  is  con- 
sidered that,  as  the  sole  surviving  partner  is,  in  law,  the  owner 
of  all  the  partnership  effects,  a  debt  due  to  the  late  partnership 
may  be  attached  in  an  action  against  the  survivor.^ 

§  572.  II.  Other  Gases  of  Joint  Creditors  of  the  G-arnishee. 
An  interesting  question  arises  as  to  the  liability  of  a  garnishee, 
where  he  is  indebted  to  two  persons  jointly,  and  is  summoned  as 
garnishee  of  one  of  them,  when  his  joint  creditors  are  not  part- 
ners. This,  it  will  be  perceived,  is  a  different  case  from  that  we 
have  been  considering,  and  may  be  sustained  on  principle. 

In  Maine,  the  following  case  arose.  A.  and  B.  contracted 
with  C.  to  cut  and  haul  lumber,  and  went  on  with  the  perform- 
ance of  the  contract ;  and  C,  at  the  time  of  the  garnishment, 
was  indebted  to  them  jointly  in  a  certain  sum  of  money.  The 
question  was,  whether,  in  respect  of  that  debt,  C.  could  be 
charged  as  garnishee  of  A.  alone  ;  and  the  court  said  :  "  The  al- 
leged trustees  in  this  case  are  the  holders  of  funds,  of  which  the 
principal  debtor  (the  defendant)  is  entitled  to  a  moiety.  The 
defendant  has  it  not  in  his  power,  without  joining  the  party  en- 
titled with  him,  by  any  coercive  process,  to  compel  payment. 
The  principal  reason  for  the  necessity  of  this  joinder  usually 
given  is,  that  otherwise  the  party  indebted  might  be  liable  to  the 
cost  and  inconvenience  of  two  suits  upon  one  contract.  Hence 
if  he  himself  sever  the  cause  of  action,  by  paying  one  of  his  joint 
creditors  his  proportion,  he  is  liable  to  the  several  creditor.  So, 
the  law,  in  carrying  out  its  remedial  provisions,  may  sever  a  con- 
tract, so  as  to  subject  the  debtor  to  the  liability  of  two  suits  upon 
one  contract.  The  death  of  one  of  two  jointly  contracting  par- 
ties, renders  the  survivor  and  the  administrator  of  the  deceased 
party  each  liable  to  a  several  suit.  So,  if  the  trustee  be  indebted 
to  the  prnicipal  in  an  entire  sum,  beyond  the  amount  wanted  to 
satisfy  the  judgment  recovered  by  the  attaching  creditor,  he  will 
remain  liable  to  the  action  of  his  principal  for  the  residue.  The 
trustee  is  but  a  stake-holder ;  and  the  law  indemnifies  him  for 

attached  for  the  debt  of  one  of  the  part-     something  coming  to  the  partner  against 
ners,  yet   decided   that   tliey   cannot  be     whom  tiie  attachment  is  laid.     Robinson 
subjected   to   the    payment   of  his  debt,     t".  Tevis,  38  California,  Cll. 
unless  it  appear  that,  upon  a  settlement  '  Knox   v.    Schepler,   2   Hill    (S.  C), 

of  the  partnership  affairs,  there  will  be     595 ;  Berry  v.  Harris,  22  Maryland,  30. 

[487] 


§  572  garnishee's  liability  [chap,  xxvii. 

the  expense  of  the  suit,  by  allowing  him  to  deduct  it,  as  a  charge 
upon  the  fund  in  his  hands.  Notwithstanding,  therefore,  if  the 
trustees  are  charged  in  this  case,  an  entire  liability  will  thereby 
be  divided  into  two  parts,  in  the  judgment  of  the  court  this  ob- 
jection cannot  prevail."  ^  In  Missouri,  the  same  point  Avas 
decided  in  a  case  where  the  garnishee  was  the  maker  of  a  note 
payable  to  two  jointly ;  but  the  court  do  not  give  at  large  the 
reasons  for  their  decision.^ 

The  same  result  was  arrived  at  in  Massachusetts,  in  a  case 
where  the  garnishees  had  in  their  possession  money  belonging  to 

A.  &  B.,  joint  owners  of  a  ship,  the  proceeds  of  the  sale  of  a  car- 
go of  silks,  and  were  garnished  in  an  action  against  B.  It  was 
objected  that  the  garnishees  were  not  liable,  because  the  money 
in  their  hands  was  the  joint  property  of  A.  &  B.  On  this  point 
the  court  said :  "  This  depends  upon  the  question  whether  A.  & 

B.  are  copartners  ;  if  they  are  the  objection  is  well  taken,  as  was 
decided  in  the  cases  of  Fisk  v.  Herrick,  6  Mass.  271,  and  Upham 
V.  Naylor,  9  Mass.  490.  These  cases,  however,  relate  to  co- 
partnerships, properly  so  called,  and  not  to  mere  tenancies  in 
common  or  joint  ownerships  of  personal  property ;  and  the  reason 
is  that  no  one  partner  can  have  any  separate  interest  in  a 
copartnership  debt,  if  he  himself  is  indebted  to  the  copartnership 
to  an  amount  which  will  absorb  his  proportion  ;  so  that  his  share 
shall  not  be  taken,  until  it  shall  be  made  to  appear  that  it  is  free 
from  the  lien  of  the  other  partners.  But  it  is  not  so  with  ten- 
ants in  common  of  a  ship,  or  persons  jointly  interested  in  a  cargo, 
they  not  being  partners,  for  they  have  no  lien  upon  each  other's 
share,  and  are  not  answerable  for  each  other's  debts.  And  this 
has  been  settled  in  several  cases  similar  to  the  one  before  us. 

"  Now  what  is  the  interest  of  B.  in  the  funds  in  the  hands  of 
the  garnishees  ?  A.  &  B.  were  the  owners  of  a  ship,  and  con- 
cerned together  in  a  voyage.  It  is  to  be  presumed  that  each  fur- 
nished his  share  of  the  outward  cargo.  The  ship  brings  home 
silks,  which,  by  reason  of  A.  &  B.  being  ship-owners,  become 
their  property.  They  are  tenants  in  common  until  the  property 
is  divided.  When  sold,  they  have  the  same  interest  in  the  pro- 
ceeds. Neither  can  claim  more  than  his  share  on  account  of 
debts  due  from  the  other.  They  have  no  lien.  The  consequence 
is,  that  a  creditor  of  either  may  attach  a  moiety,  and,  when  sold 

1  Whitney  v.  Munroe,    9  Maine,  42.         2  Miller  v.  Richardson,  1  Missouri,  310. 
[488] 


CHAP,  xxvn.] 


WITH   CO-DEBTOES,   ETC. 


572 


by  a  factor,  though  he  may  discharge  himself  by  payment  to 
either,  if  they  united  in  the  deposit,  he  is  nevertheless  debtor  to 
each,  and  is  answerable  to  the  creditor  of  each  when  the  funds 
are  attached  in  his  hands."  ^ 

There  is  in  Massachusetts  a  later  case,  which  might  seem  to 
militate  against  this  doctrine,  and  therefore  demands  notice.^  A. 
&  B.  contracted  with  a  town  to  erect  a  barn  and  do  some  other 
work,  for  a  stipulated  compensation.  After  the  work  was  done, 
the  town  was  garnished  in  two  suits  against  B.,  and  in  its  answers 
disclosed  its  indebtedness  to  A.  &  B.  jointly,  and  judgments  were 
rendered  against  it  in  respect  of  B.'s  share  of  the  debt.  After- 
wards A.  &  B.  joined  in  an  action  against  the  town,  and  the  judg- 
ments rendered  against  the  town,  as  garnishee  of  B.,  were  set  up 
in  bar  pro  tanto  of  the  recovery.  The  court,  after  referring  to 
the  garnishments,  say:  "In  each  of  those  suits  the  town  was 
charged,  and  a  portion  of  the  debt  due  to  the  plaintiffs  jointly, 
was  thus  adjudged  liable  to  be  appropriated  by  process  of  law,  to 


1  Thorndike  v.  DeWolf,  6  Pick.  120. 
In  Hanson  v.  Davis,  19  New  Hamp.  133, 
the  Superior  Court  of  New  Hampshire 
take  the  contrary  ground.  A.  was  sum- 
moned as  trustee  of  B.,  and  disclosed 
tliat  he  had  executed  certain  notes  to  B. 
&  C,  jointly,  and  that  the  payees  were 
equally  interested  in  them.  The  court 
said  :  "  The  question  is,  wliether  A.  can 
be  charged  as  trustee  of  the  defendant 
for  any,  and  for  what  part  of  the  notes. 
We  are  of  opinion  that  he  cannot  be 
charged  for  any  part.  The  notes  are  due 
to  B.  &  C,  jointly,  neither  owning  any 
particular  note  or  part  of  the  debt.  If 
a  payment  is  made  to  one,  it  is  for  tlie 
benefit  of  both,  and  the  money  is  the 
money  of  both.  The  trustee,  it  is  plain, 
cannot  be  charged  for  the  whole  note; 
and  if  he  were  to  be  charged  for  one  half, 
that  does  not  sever  the  joint  property, 
and  that  half  still  belongs  as  much  to  C. 
as  to  the  defendant.  And  if,  after  being 
so  charged,  the  trustee  were  to  become 
unable  to  pay  the  balance,  C.  ouglit  to 
lose  but  one  half  of  that,  and  would  be 
entitled  to  recover  of  the  j)laintiff  one 
half  of  what  he  had  received ;  that  is,  if 
the  attaching  creditor  had  no  greater 
right  than  his  debtor.  A  trustee  cannot 
be  charged   where   the   interest    of   the 


principal  is  merely  a  contingent  interest. 
Here  if  the  principal  debtor,  B.,  die,  the 
note  survives  to  C,  the  other  payee,  and 
he  alone  can  enforce  payment  of  it.  B.'s 
interest  is,  therefore,  contingent,  and 
may  become  altogether  extinguislied. 
The  rights  of  C,  the  other  payee,  are 
injuriously  affected  by  this  attachment. 
While  this  process  is  pending,  how  can 
C.  sue  for  the  residue,  or  enforce  its  pay- 
ment ?  Must  he  wait  until  this  suit  is 
at  an  end,  and  then  if  the  trustee  is 
charged,  as  debtor  of  B.,  for  one  half  of 
the  notes,  shall  C.  sue  for  the  balance  in 
his  own  name,  or  in  the  name  of  both  ? 
On  the  theory  of  the  plaintiff,  the  trustee 
is  to  be  charged  as  the  debtor  of  B.,  for 
one  half  of  the  notes.  B.,  then,  has  no 
longer  any  interest  in  the  residue  of  the 
note.  Yet  how  is  C.  to  control  and  col- 
lect it,  and  what  prevents  B.  from  receiv- 
ing it  and  giving  a  discharge  ?  Upon 
the  whole,  we  do  not  see  how,  consist- 
ently with  the  rights  of  the  payees  of 
these  notes,  the  trustee  can  be  holden, 
and  he  must,  therefore,  be  discharged." 
See  French  v.  Rogers,  16  New  Ilamp. 
177  ;  Fairchild  v.  Lampson,  37  Vermont, 
407. 

2  Hawes  v.  Waltham,  18  Pick.  451. 

[489] 


§572  garnishee's   LIABILITY,    ETC.  [CHAP.  XXVIL 

the  payment  of  the  several  debt  of  one  of  them.  This,  we 
think,  was  erroneous.  It  seems  to  be  now  settled  by  authorities, 
that  a  joint  debt  cannot  thus  be  severed  and  appropriated,  in 
whole  or  in  part,  to  discharge  the  several  debt  of  one."  In  sup- 
port of  this  broad  and  general  proposition,  the  court  refer  to  cases 
already  herein  considered,  of  attaching  partnership  credits  for  the 
debt  of  part  of  the  firm,  and  then  proceed  with  remarks  which 
apply  only  to  such  a  case.  The  case  before  the  court  is  evidently 
treated  as  one  of  partnership  ;  and  the  court  conclude  their  opin- 
ion on  this  branch  of  the  controversy  with  these  words :  "  It  ap- 
pears, by  the  answers  of  the  town,  that  they  were  indebted  to 
the  two  jointly,  without  any  thing  further  appeariyig.  In  such  a 
case  the  court  are  of  opinion  that  they  could  not  be  charged,  in 
a  suit  against  one  only."  We  are  left  to  the  conclusion  that,  if 
it  had  appeared  to  the  court  that  the  debt  was  due  to  A.  &  B. 
jointly,  but  not  as  partners,  the  decision  might  have  been  other- 
wise. Whether,  however,  the  court  intended  to  give  such  an 
intimation,  or  not,  it  is  quite  certain  that  the  question  of  the  lia- 
bility of  a  garnishee  under  such  circumstances  was  not  passed 
upon  by  the  court. 
[490] 


CHAP.  XXVIII.]      GARNISHEE  AS   PAKTY  TO   A  NOTE.  §  575 


CHAPTER    XXVIII. 

THE    garnishee's    LIABILITY    AS    A   PARTY   TO    A    PROMISSORY 

NOTE. 

§  573.  Various  questions  of  interest  arise  in  the  consideration 
of  this  subject.  The  attempt  to  subject  the  maker  of  a  promis- 
sory note  to  garnishment,  in  a  suit  against  the  payee,  necessarily 
brings  to  Hght,  in  some  of  its  aspects,  serious  difficulties.  Prin- 
cipal among  these  is  the  danger  that  the  maker,  if  subjected  as 
garnishee,  may,  without  any  fault  on  his  part,  be  compelled  to  pay 
the  amount  of  the  note  a  second  time.  That  such  a  result  is 
possible,  is  enough  in  itself  to  give  importance  to  our  present 
inquiries.  The  subject  will  be  considered,  I.  In  regard  to  unne- 
gotiable  notes ;  and  II.  With  reference  to  negotiable  notes. 

§  574.  I.  Unnegotiable  Notes.  By  notes  of  this  description  are 
meant  all  notes  which  are  not  governed  by  the  law  merchant. 
Usually  the  maker  is  entitled  to  every  defence  against  the  payee, 
arising  at  any  time  before  he  receives  notice  of  the  assignment  of 
the  note.  In  some  States,  however,  he  can  interpose  between 
himself  and  a  bond  fide  assignee,  no  defence  which  arose  after  the 
assignment  was  in  fact  made,  though  he  had  no  knowledge  of  its 
having  been  made. 

§  575.  Wherever  notice  of  an  assignment  is  required  to  be 
given  by  the  assignee  to  the  maker,  there  can  be  no  good  reason 
why  the  latter  should  not  be  held  as  garnishee  of  the  payee,  at 
any  time  before  he  receives  such  notice  ;  but  unquestionable 
reasons  why  he  should.  He  is  indebted  to  the  payee  by  written 
promise,  and  if  in  respect  of  that  indebtedness  he  be  charged  as 
garnishee,  he  is  in  no  sense  injured  thereby,  for  no  assignment 
made  after  he  is  garnished  can  prevent  his  setting  up  his  payment 
as  garnishee  as  a  defence  against  the  note  in  the  assignee's  hands, 
even  though  the  assignee  acquired  title  bond  fide  and  was  ignorant 

[491] 


§  577  GARNISHEE   AS   PARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

of  the  garnishment.^     In  such  case  the  laches  of  the  assignee 
occasions  his  loss. 

§  576.  When  the  maker  of  an  unnegotiahle  note  is  thus  gar- 
nished, if  he  have  received  notice  of  an  assignment  of  the  note, 
made  before  the  garnishment,  he  should  state  it  in  his  answer ; 
or  if  he  be  afterward  notified  of  such  antecedent  assignment,  in 
time  to  amend  his  answer  before  judgment  is  rendered  thereon, 
he  should  make  it  known  to  the  court ;  and  if  he  fail  to  do  so, 
he  cannot  avail  himself  of  the  payment  of  the  judgment  rendered 
against  him  as  garnishee,  in  defence  of  an  action  brought  by  the 
assignee.2  So,  if  he  have  been  sued  on  the  note  by  persons  styl- 
ing themselves  assignees.^  And  it  matters  not  whether  the  in- 
formation he  has  received  of  an  assignment  be  in  fact  true  or 
false  ;  it  is  equally  his  duty  to  make  it  known  in  his  answer.* 
And  if  the  garnishee,  at  any  time  before  payment  of  the  judg- 
ment against  him,  receive  notice  of  an  assignment  made  before 
he  was  garnished,  and  fail  to  take  proper  steps  to  prevent  pay- 
ment of  the  judgment,  it  is  said  that  such  payment  will  be  in  his 
own  wrong,  and  will  constitute  no  valid  defence  to  the  claim  of 
the  assignee.^ 

§  577.  These  rules  apply  with  equal  force  where,  as  at  the 
common  law,  no  action  can  be  maintained  on  such  notes  except 
in  the  name  of  the  payee,  and  where,  as  in  many  States,  the 
assignee  is  authorized  by  statute  to  sue  in  his  own  name.  In  the 
latter  case,  the  assignee  is  invested  with  a  legal  right,  which  he 
may  enforce  by  an  action  at  law,  and  it  is  therefore  complete. 
In  the  former,  the  right  is  merely  equitable,  and  not  susceptible 
of  enforcement  by  the  assignee  in  his  own  name,  except  in  a  court 
of  equity ;  but  it  is  none  the  less,  in  this  proceeding,  entitled  to 
the  protection  of  the  courts ;  which,  with  great  uniformity,  have 

1  Dore  V.  Dawson,  6  Alabama,  712 ;  '■!  Crayton  v.  Clark,  11  Alabama,  787  ; 

Robinson  v.  Mitchell,  1  Harrington,  365  ;  Foster  v.  White,  9  Porter,  221 ;  Colvin  v. 

Covert  V.  Nelson,  8  Blackford,  265 ;  Com-  Rich,  3  Ibid.  175  ;  Cross  v.  Haldeman,  15 

stock  V.  Farnum,  2  Mass.  96  ;  Clark  v.  Arkansas,  200. 

King,  Ibid.   524  ;  Junction  R.  R.   Co.  v.  3  Stubblefield  v.  Hagerty,  1  Alabama, 

Cleneay,    13  Indiana,    161 ;    Shetler    v.  38  ;  Smith  v.  Blatchford,  2  Indiana,  184. 
Thomas,  16  Ibid.  223.     In   Alabama  no  4  Foster  v.  Walker,  2  Alabama,  177 ; 

notes  are  recognized  as  governed  by  the  Wicks  v.  Branch  Bank,  12  Ibid.  594. 
principles  of  the  law  merchant,  but  such  ^  Oldham    v.    Ledbetter,    1    Howard 

as  are  made  payable  in  bank.  (Mi.),  43. 
[492] 


CHAP.  XXVIII.]      GARNISHEE   AS   PARTY   TO    A   NOTE,  §  578 

sustained  equitable  assignments  against  attachment  for  the  debts 
of  the  assignors.! 

§  578.  What  will  be  a  sufficient  statement  of  an  assignment 
in  the  answer  of  a  garnishee  must  depend,  to  some  extent,  upon 
the  force  given  to  the  answer  under  the  system  of  practice  in 
each  State.  In  Massachusetts,  at  the  time  when  the  garnishee's 
liabiHty  was  determined  solely  by  his  answer,  and  no  extrinsic 
evidence,  tending  either  to  fix  or  defeat  his  liability,  could,  even 
with  the  consent  of  plaintiff,  defendant,  and  garnishee,  be  intro- 
duced, it  was  held,  that  the  assignee,  in  order  to  avail  himself 
of  the  assignment,  must  exhibit  to  the  garnishee,  before  he  is 
examined,  satisfactory  evidence  of  a  legal  assignment,  made  before 
the  attachment,  in  order  that  the  garnishee  may,  in  his  answer, 
lay  the  evidence  before  the  court.^  The  same  rule  prevails  in 
Maine.3  Hence,  if  such  evidence  be  produced  to  the  garnishee, 
and  embodied  in  his  answer,  he  cannot  be  charged,  though  it 
appear  that  the  payee  sold  the  note  for  the  express  purpose  of 
absconding  and  defrauding  his  creditors.^ 

In  the  Revised  Statutes  of  Massachusetts  of  1836,  and  in  the 
General  Statutes  of  that  State  of  1860,  it  was  provided  that  "  the 
answers  and  statements  sworn  to  by  a  trustee  shall  be  considered 
as  true,  in  deciding  how  far  he  is  chargeable,  but  either  party 
may  allege  and  prove  any  other  facts  not  stated  nor  denied  by 
him,  that  may  be  material  in  deciding  that  question."  Under 
this  statute  a  garnishee  answered  that  he  had  given  the  defendant 
certain  notes,  which  he  was  informed  and  believed  had  been 
transferred  by  the  defendant  to  a  creditor  of  the  defendant,  for 
a  valuable  consideration ;  but  he  had  not  been  informed  and  did 
not  know  who  was  the  owner  of  the  notes.  No  additional  alle- 
gations were  filed,  nor  collateral  proofs  offered,  by  the  plaintiff; 
and  the  garnishee's  liability  was  therefore  to  be  determined  solely 
upon  his  answer.  It  was  objected  by  the  plaintiff  that  the  gar- 
nishee did  not  state  the  assignment  as  of  his  own  knowledge ; 
but  the  court  overruled  the  objection ;  holding  that  if  the  gar- 
nishee answers  fairly  and  makes  a  full  disclosure,  the  facts  which 

1  See  Chapters  XXIV.  and  XXXI.  *  Newell    v.  Adams,   I   D.  Chipman, 

•^Foster    v.    Sinkler,    4    Mass.    450;     340;  Hutchins  v.   Hawley,   9   Vermont, 
Wood  V.  Partridge,  11  Ibid.  488.  295;   Burke  v.  Whitcomb,  13  Ibid.  421. 


3  McAllister  v.  Brooks,  22  Maine,  80. 


[493] 


§  580  GARNISHEE  AS  PARTY  TO   A  NOTE.       [CHAP.  XXVIIT. 

he  states  to  be  true,  from  his  information  and  belief,  are  to  be 
considered  as  true,  as  well  as  those  stated  on  his  own  knowledge. ^ 

§  579.  Where,  however,  as  is  generally  the  case,  the  answer  of 
the  garnishee  may  be  controverted  and  disproved  ;  and  more 
especially  where,  if  the  answer  sets  up  an  assignment  of  the  note, 
the  supposed  assignee  may  be  cited  into  court,  and  required  to 
substantiate  the  assignment ;  it  cannot  be  considered  necessary 
for  the  garnishee  to  set  forth  in  his  answer  the  evidence  of  the 
assignment ;  it  will  be  sufficient  for  him  to  state  that  he  has  re- 
ceived notice  of  it.  And  when  he  so  states,  no  judgment  can  be 
rendered  against  him  on  the  anszver,  whether  the  information  he 
has  received  of  the  assignment  be  true  or  false.  If  the  plain- 
tiff suppose  the  notice,  or  the  garnishee's  statement  of  it,  to  be 
false,  the  answer  should  be  contested,  and  if  not  contested,  the 
garnishee  must  be  discharged  ;  for  it  not  only  does  not  appear 
that  he  is  indebted  to  the  defendant,  but  the  answer  shows 
indebtedness  to  the  assignee.^ 

§  580.  In  the  class  of  cases  to  which  we  have  attended,  it  will  be 
seen  that  the  fact  of  notice  to  the  maker  of  the  note  of  its  assign- 
ment is  of  first  importance.  But  where,  as  in  some  States,  the 
assignment  of  a  note  is,  per  se  operative  and  effectual,  and  no  notice 
to  the  maker  is  required,  how  is  the  maker  to  be  charged  as  gar- 
nishee of  the  i)ayee,  without  liability  to  a  second  payment  to  the 
assignee  ?  If,  ignorant  of  any  assignment,  he,  in  his  answer,  ad- 
mit an  indebtedness  to  the  defendant,  and  judgment  be  rendered 

1  Fay  V.  Sears,  111  Mass.  154.  posed  assignee  to  appear  and   establish 

2  Colvin  «;.  Rich,  3  Porter,  175  ;  Foster  the  genuineness  of  the  assignment;  in 
V.  White,  9  Ibid.  221  ;  Foster  v.  Walker,     default  of  which,  the  judgment  against 

2  Alabama,  177  ;  Wicks  v.  Branch  Bank,  the  garnishee  would  be  a  bar  to  a  subse- 
12  Ibid.  594;  Yarborough  v.  Thompson,  quent  action  by  the   assignee.     Born  v. 

3  Smedes  &  Marshall,  291 ;  Thompson  v.  Staaden,  24  Illinois,  820.  In  a  later  case, 
Shelby,  Ibid.  296;  Cadwalader  v.  Hart-  however,  it  was  there  held,  that  no  judg- 
ley,  17  Indiana,  520.  In  Illinois,  it  was  at  ment  could  be  given  against  a  garnishee, 
one  time  held,  that  the  mere  statement  on  his  answer,  who  stated  that  he  had 
by  a  garnishee  in  his  answer,  that  he  had,  given  the  defendant  a  note;  had  last  seen 
after  his  garnishment,  been  notified  that  it  in  his  possession  before  tlie  garnish- 
his  debt  to  the  defendant  had  been  as-  ment  took  place ;  had  been  told  by  de- 
signed by  the  latter  before  the  garnish-  fendant  that  he  had  sold  it  before  the 
ment,  without  any  evidence,  or  even  the  garnishment ;  and  it  had  since  been  pre- 
expression  of  an  opinion,  that  the  assign-  sented  to  him  for  payment  by  another 
ment  was  genuine,  is  not  sufficient  of  person  who  claimed  to  own  it.  Wilhelmi 
itself  to  discharge  the   garnishee ;    but  v.  Haffner,  52  Illinois,  222. 

will  justify  the  court  in  requiring  the  anp- 
[494] 


CHAP.  XXVIII.]      GARNISHEE   AS   PARTY  TO  A  NOTE.  §  581 

against  him,  and  afterwards  an  assignee  of  the  note,  under  an 
assignment  made  before  the  attachment,  claim  its  payment,  can 
it  be  resisted  ?  Shall  the  assignee  be  prejudiced  by  a  proceeding 
to  which  he  was  no  party,  and  of  which  he  was  ignorant  ?  Or, 
shall  he  be  required  to  give  notice  of  the  assignment,  in  order  to 
prevent  his  money  from  being  taken  to  pay  another's  debt,  when 
the  law  vests  the  title  fully  in  him,  without  the  necessity  of  such 
notice  ?  On  the  other  hand,  shall  the  garnishee  be  compelled  to 
pay  twice  ?  These  inquiries  serve  to  illustrate  the  difficulty  of 
charging  the  maker  of  a  note  which,  though  not  negotiable  by 
the  law  merchant,  may  yet  be  assigned  without  notice  to  the 
maker,  so  as  to  cut  off  any  defence  he  might  have  against  the 
payee,  arising  after  the  assignment,  and  before  he  comes  to 
the  knowledge  of  it.  This  difficulty  was  experienced  by  the 
Supreme  Court  of  Missouri,  at  a  time  when  the  statute  (since 
changed)  gave  the  maker  of  an  unnegotiable  note  a  right  of  de- 
fence against  the  assignee,  only  in  respect  of  matters  which  ex- 
isted prior  to  the  assignment ;  and  led  that  court  to  the  only  safe 
conclusion,  that  such  notes,  as  regards  liability  to  attachment, 
must  be  regarded  as  on  the  same  footing  with  negotiable  paper.i 

§  581.  The  cases  previously  cited  refer  altogether  to  notes  exe- 
cuted within  the  States  where  the  decisions  were  made.  A 
question  of  some  interest  is  presented,  wdiere  the  maker  of  a  note 
given  or  negotiated  in  a  State  where  it  is  held  to  be  negotiable,  is 
garnished  in  a  State  where  the  same  note  would  be  considered 
unnegotiable.  It  has  been  ruled,  that  the  character  of  the  note, 
with  reference  to  this  proceeding,  must  be  determined  by  the 
law  of  the  State  where  it  was  given  or  negotiated  ;  and  that  if 
negotiable  there,  the  maker  will  not  be  charged  as  garnishee  of 
the  payee.  Thus,  where  A.,  having,  in  Massachusetts,  executed 
a  negotiable  note,  payable  there  to  B.,  was  summoned  in  Ver- 
mont as  B.'s  garnishee,  where  the  note  would  not  be  considered 
negotiable;  it  was  held,  that  inasmuch  as  it  was  by  the  lex  loci 
contractus  negotiable,  and  therefore  not  attachable,  it  could  not 
be  attached  in  Vermont  by  garnishing  the  maker.^  So,  where 
A.  executed  in  Pennsylvania,  and  delivered  to  B.,  in  New  York, 

1  St.  Louis  Perpetual  Ins.  Co.  v.  Co-  2  Baylies  v.  Houghton,  15  Vermont, 
hen,  9  Missouri,   421.      See   Speight   v.     626. 


Brock,  Freeman,  389. 


[495] 


§  583  GARNISHEE   AS   TARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

a  promissoiy  note,  which,  by  the  law  of  the  former  State,  was 
unnegotiable,  but  by  that  of  the  latter  was  negotiable,  and  be- 
fore the  note  became  due,  A.  was  summoned  as  garnishee  of  B. ; 
it  was  held,  that,  though  the  note  was  drawn  in  Pennsylvania,  it 
was  delivered  and  took  effect  in  New  York,  and  was  liable  to  the 
law  of  that  State,  which  gave  it  the  effect  of  a  foreign  bill  of 
exchange,  and  therefore  the  maker  was  exempted  from  garnish- 
ment on  account  of  the  payee.^  And  so,  in  Indiana,  as  to  a  note 
executed  and  payable  in  Ohio.^  But  where  a  resident  of  Ver- 
mont made  a  negotiable  note  to  a  resident  of  Massachusetts, 
payable  at  a  bank  in  Vermont,  where  he  could,  under  the  statute, 
be  subjected  to  garnishment  in  respect  thereof,  he  was  charged, 
because  he  resided,  and  the  note  was  payable^  in  Vermont,  though 
by  the  law  of  Massachusetts  he  could  not  have  been  charged.^ 

§  582.  II.  Negotiable  Notes.  Any  difficulties  which,  under  any 
system,  attend  the  garnishment  of  the  maker  of  an  unnegotiable 
note,  in  an  action  against  the  payee,  are  trivial  compared  with 
those  which  beset  a  like  attempt  in  the  case  of  a  negotiable  note  ; 
no  notice  of  the  transfer  of  which  is  necessary,  and  which  is 
intended  to  pass  from  hand  to  hand  as  cash ;  each  holder,  before 
its  maturity,  feeling  himself  secure,  and  entitled  to  be  secure, 
against  any  defence  which  the  maker  might  have  against  the 
payee.  The  injurious  results  of  subjecting  such  paper  to  attach- 
ment, have  led,  in  some  States,  to  its  express  exception,  by 
statute,  out  of  the  operation  of  the  process.  In  States  where  the 
statutes  are  silent  on  this  point,  the  courts  have  differed  in  their 
views. 

§  583.  It  is  difficult  to  perceive  any  substantial  justification  of 
such  a  proceeding  ;  while,  obviously,  it  disregards  principles 
which,  by  general  consent,  have  been  laid  at  the  foundation  of 
all  attempts  to  subject  garnishees  to  liability.  It  cannot  be 
without  benefit  to  recur  to  those  principles  in  this  connection. 
1.  Without  dissent,  it  is  impossible  to  charge  a  garnishee  as  a 
debtor  of  the  defendant,  unless  it  appear  affirmatively  that,  at  the 
time  of  the  garnishment,  the  defendant  had  a  cause  of  action 

1  Ludlow  V.  Bingham,  4  Dallas,  47.  •*  Emerson  v.  Partridge,  27  Ver- 
See  Green  v  Gillett,  5  Day,  485.                     mont,  8. 

2  Smith  V.  Blatchford,  2  Indiana,  184. 

[496] 


CHAP.  XXVIII.]      GARNISHEE   AS   PARTY   TO  A  NOTE.  §  585 

against  him,  for  the  recovery  of  a  legal  debt,  due,  or  to  become 
due  by  the  efflux  of  time.^  2.  The  attachment  plaintiff  can  hold 
the  garnishee  responsible  (except  in  some  few  cases  which  have 
been  referred  to,  and  have  no  application  here),  only  so  far  as 
the  defendant  might  hold  him  by  an  action  at  law.  3.  The  gar- 
nishee is,  under  no  circumstances,  to  be  placed  by  the  garnish- 
ment in  a  worse  condition  than  he  would  otherwise  be  in. 
4.  No  judgment  should  be  rendered  against  him  as  garnishee, 
where  he  answers  fairly  and  fully,  unless  it  would  be  available 
as  a  defence  against  any  action  afterwards  brought  against  him, 
on  the  debt  in  respect  of  which  he  is  charged. 

§  584.  Applying  these  well-established  principles  to  this  sub- 
ject, it  would  seem  quite  impracticable  to  charge  the  maker  of  a 
negotiable  promissory  note,  as  garnishee  of  the  payee,  so  long 
as  the  note  is  still  current  as  negotiable  paper.  This  character  it 
bears  until  it  becomes  due ;  and  no  operation  which  can  be 
given  to  the  garnishment  of  the  maker,  can  change  its  nature  in 
this  respect. 

§  585.  While  the  note  is  current  as  negotiable  paper,  it  is 
usually  very  difficult  for  the  maker  to  say  whether,  at  the  time 
of  the  garnishment,  it  was  still  the  property  or  in  the  possession 
of  the  payee.  If  he  answers  that  he  does  not  know  whether  it 
was  so  or  not,  certainly  he  should  not  be  charged,  because  it 
does  not  appear  affirmatively  that  he  was,  when  garnished,  in- 
debted to  the  defendant ;  and  unless  that  fact  do  so  appear,  no 
court  can  rightfully  render  judgment  against  him.  The  most 
that  can  be  claimed  is,  that  he  may  be  so  indebted,  which  is 
manifestly  insufficient.  The  great  fact  necessary  to  charge  him 
is  not  shown,  but  only  conjectured.  The  whole  matter  is  in 
doubt ;  and  while  in  doubt  the  court  cannot  with  truth  record 
that  the  garnishee  is  found  to  be  indebted  to  the  defendant ;  and 

i  Wetherill  v.  Flanagan,  2  Miles,  243  ;  ney  v.  Ellis,  11  Smedes  &  Marshall,  348; 

Bridges  v.  North,  22  Georgia,  52;  Allen  Brown  v.  Slate,  7  Humphreys,  112 ;  Davis 

V.   Morgan,   1   Stewart,  9  ;     Pressnall  v.  v.  Pawlettc,  3  Wisconsin,  300 ;  Wilson  v. 

Mabry,  3  Porter,  105;  Smith  w.  Chapman,  Albright,  2  G.   Greene,    125;    Pierce   v. 

6  Ibid.  365;  Mims  v.  Parker,  1  Alabama,  Carleton,  12  Illinois,  358;  People  v.  John- 

421;  Foster  y.  Walker,  2  Ibid.  177;  For-  son,   14  Ibid.  342;    Ellicott  ;;.   Smith,  2 

tune  V.  State  Bank,  4  Ibid.  385  ;  Connoley  Cranch  C.  C.   643  ;    ante,   §    461 ;    post, 

V.  Cheeseborough,  21  Ibid.  166  ;  Estill  v.  §  659. 


Goodloe,  6  Louisiana  Annual,  122 ;  Har- 


32  [497] 


§  585  GARNISHEE    AS   PARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

unless  that  bo  found  by  the  judgment  of  the  court,  there  is  no 
ground  for  charging  the  garnishee.^ 

This  difficulty  is  not  removed  by  resorting  to  the  presumption 
that  the  debt,  being  shown  to  have  once  existed,  still  exists. 
Presuni[)iions  of  that  description  are  founded  on  the  experienced 
continuance  or  permanency  of  a  state  of  things,  or  a  relation, 
which  is  found  to  have  once  existed.  They  are  available  only  so 
far  as  experience  shows  the  state  of  things,  or  the  relation,  likely 
to  continue.  When  it  is  shown  that  the  nature  of  the  subject  is 
inconsistent  with  the  presumption,  the  presumption  cannot  arise. 
When,  therefore,  it  appears  that  a  garnishee,  before  he  was  sum- 
moned, made  a  negotiable  note  to  the  defendant,  no  presumption 
arises  that  lie  was,  when  garnished,  a  debtor  of  the  defendant  in 
respect  of  that  note,  because  the  negotiable  character  of  the  note 
is  given  to  it  for  the  very  purpose  of  its  being  negotiated,  and 
experience  teaches  that  such  notes  are  not  usually  held  by  the 
payees  until  maturity,  but  are  the  subjects  of  incessant  transfers 
by  indorsement  and  delivery. 

But  though  the  garnishee  should  answer  that  the  defendant,  at 
the  time  of  the  garnishment,  was  the  owner  of  the  garnishee's 
note,  not  then  due,  no  judgment  should  be  rendered  against  him, 
because  his  obligation  is  not  to  pay  to  any  particular  person,  hut  to 
the  holder,  at  maturity,  tvhoever  he  may  he?  Can  the  garnishee, 
or  the  defendant,  or  the  court,  say  that  the  defendant  will  be  the 
holder  of  the  note  at  its  maturity  ?  Certainly  not ;  and  yet  to 
give  judgment  against  the  garnishee,  necessarily  assumes  that  he 
will  be ;  or,  in  disregard  of  the  contrary  probability,  holds  the 
garnishee  to  a  responsibility  which  he  may  have  to  meet  again  in 
an  action  by  a  hand  fide  holder  at  maturity. 

It  results  hence  that  no  such  judgment  can  be  rendered,  with- 
out placing  the  garnishee  in  a  worse  situation  than  he  would  oth- 
erwise be  in,  by  requiring  him  to  pay  to  the  plaintiff  money 
which  he  may,  and  probably  will,  afterwards  be  compelled  to  pay 
ao"ain  to  an  innocent  holder  of  the  note.  It  is  no  answer  to  this 
to  say,  that  he  may  not  be  compelled  to  pay  a  second  time  ;  for 
the  presumption  from  the  character  of  the  paper  is  the  other 

1  This  paragraph  was  adopted  as  law  Kimball  v.  Plant,  Ibid.  511 ;  McMillan  v. 
by  the  Supreme  Court  of  Mississippi,  in  Richards,  9  California,  365  ;  Gregory  v. 
McNeill  V.  lloache,  49  Mississippi,  436.  Higgins,  10  Ibid.  339. 

2  Sheets  v.  Culver,  14  Louisiana,  449 ; 

[498] 


CHAP.  XXVIII.]       GARNISHEE   AS   PARTY   TO   A   NOTE.  §  586 

way ;  and  the  mere  liability  to  such  second  payment  is  sufficient 
to  pbice  him  in  a  worse  condition  than  he  would  otherwise  be 
in.  The  only  way  to  avoid  this  is  to  give  the  garnishment  the 
effect  of  destroying  the  negotiability  of  the  note  ;  a  proposition 
which  bears  on  its  face  its  own  condemnation. 

Finall}^  this  proceeding  clearly  violates  the  undoubted  prin- 
ciple that  no  judgment  can  properly  be  rendered  against  a  gar- 
nishee who  fully  and  truly  answers,  unless  it  will  avail  him  as  a 
defence  against  any  one  who  afterwards  attempts  to  recover  the 
same  debt  from  him  by  action.  This  important  rule  can  in  no 
case  be  dispensed  with,  without  manifest  injustice  to  the  gar- 
nishee. It  is  not  sufficient  that  the  garnishee  may  be  protected  ; 
it  is  the  duty  of  the  court,  with  the  whole  case  before  it,  to  as- 
certain whether  its  judgment  will  be  effectual  to  that  end  ;  and 
if  it  do  not  appear  that  it  will,  it  should  not  be  given.  Mani- 
festly, then,  in  this  case,  no  judgment  should  be  given  against 
the  garnishee  ;  for  it  will  not  avail  him  as  a  defence  to  a  suit  by 
a  bond  fide  holder,  who  acquires  title  to  the  note  before  its  matu- 
rity. He  is  no  party  to  the  judgment ;  his  rights  are  not  passed 
upon  by  the  court ;  and  it  is  simply  absurd  to  claim  that  he  is 
concluded  or  affected  by  the  judgment.  And  yet  no  court  can 
consistently  sustain  the  attachment  of  negotiable  paper,  while  it 
is  still  current,  without  claiming  for  its  judgment  conclusive  effect 
in  favor  of  the  garnishee  against  all  the  world,  —  in  which  case 
a  bond  fide  holder  may  lose  the  amount  of  the  note,  — or  leaving 
the  door  open  for  the  garnishee  to  be  compelled  to  pay  the  same 
debt  a  second  time. 

§  586.  The  only  expedient  which  has  yet  been  suggested  for 
avoiding  the  difficulties  attending  the  garnishment  of  the  maker 
of  a  negotiable  note  while  current,  originated  with  the  Supreme 
Court  of  Missouri ;  by  which  it  was  at  one  time  intimated,^  (but 
afterwards  expressly  decided  the  other  way^),  that  an  indorsee, 
having  no  notice  of  the  attachment,  might  recover  back  from  the 
attachment  plaintiff  the  amount  recovered  by  him  from  the  maker, 
as  garnishee  of  the  payee.  While  it  is  admitted  that  this,  at 
least,  should  be  done  for  an  indorsee  under  such  circumstances, 
by  the  court  which  lias  arbitrarily  seized  upon  his  property,  vari- 

1  Quarles  v.  Porter,  12  Missouri,  76  ;  -  Funkhouser    v.    How,   24   Missouri, 

Colcord  V.  Daggett,  18  Ibid.  557.  44  ;  Diclcey  v.  Fox,  Ibid.  217. 

[499] 


§  588  GARNISHEE   AS   PARTY  TO   A   NOTE.      [CHAP.  XXVIH. 

ous  inquiries  at  once  arise.  Wh3s  and  by  what  authority,  is  the 
lethal  recourse  of  the  indorsee  against  the  maker  of  the  note  thus 
summarily  cut  off,  without  his  knowledge  or  consent?  By  what 
rule  or  precedent  is  a  judgment  to  which  he  was  no  party,  and  of 
which  he  had  no  notice,  interposed  between  him  and  his  debtor? 
Upon  what  principle  of  law,  or  justice,  or  right,  is  his  property 
appropriated  to  pay  the  debt  of  another  ?  What  right  has  any 
court,  against  his  Avill,  to  destroy  his  relation  of  creditor  to  the 
maker  of  the  note,  and  constitute  him  a  creditor  of  a  stranger? 
What  justice  is  there  in  compelling  him  to  follow,  perhaps  to  a 
distant  State,  the  attachment  plaintiff,  to  recover  by  legal  resort 
that  which  the  maker  would  have  paid  at  home  without  such 
resort,  if  he  had  not  been  garnished  ?  And  when  he  seeks  in  a 
distant  forum  to  enforce  his  claim  against  the  attachment  plain- 
tiff, what  guaranty  is  there  that  his  right  will  be  recognized  ? 
Until  these  questions  are  satisfactorily  answered,  consistently 
Avith  established  principles  of  law,  it  is  difficult  to  see  in  the  pro- 
posed expedient  any  thing  more  than  an  unauthorized  act  of  ju- 
dicial legislation,  framed  to  avoid,  if  possible,  the  evils  flowing 
from  the  previous  enunciation  of  an  unsound  doctrine. 

§  587.  The  foregoing  considerations  lead  to  the  conclusion  that, 
as  a  general  rule,  the  maker  of  a  negotiable  note  should  not  be 
charged  as  garnishee  of  the  payee,  under  an  attachment  served 
before  the  maturity  of  the  note,  unless  it  be  affirmatively  sJioivn, 
that,  before  the  rendition  of  the  judgment,  the  note  had  become  due, 
and  tvas  then  still  the  j^roperty  of  the  payee.^  Let  us  now  examine 
the  bearing  of  the  adjudications  on  this  subject. 

§  588.  In  several  States,  it  has  been  decided,  on  principle,  un- 
influenced by  statutory  provisions,  that  the  maker  of  a  negotiable 
note  shall  not  be  charged  as  garnishee  of  the  payee  while  the 
note  is  still  current.  In  New  Hampshire,  the  court  said  :  "  The 
reason  of  this  rule  is  founded  upon  the  negotiable  quality  of 
the  paper.     If  the  trustee  could  be  charged  in  such  a  case,  then 

1  This  rule  was,  in  1855,  incorporated  of  negotiable  paper,  without  interfering 

into  the  attachment  law  of  Missouri ;  and  with  the  rights  of  third   parties  ,  unless 

my  impression  is  that  there  is  a  tendency  the  suggestion  of  the  Supreme  Court  of 

towards   its  adoption   elsewhere   by  tiie  Pennsylvania,    in    Kieffer     v.    Eider,    18 

judiciary.     It  seems  to  me  to  be  the  only  Penn.  State,  388,  to  impound  the  note,  should 

one  which   can   allow  of  the  attachment  be  adopted.     See  post,  §  588. 
[500] 


CHAP.  XXVIII.]       GARNISHEE   AS   PARTY   TO   A   NOTE.  §  588 

it  might  happen  that  either  a  bond  fide  purchaser  of  the  note  must 
lose  the  amount  of  it,  or  the  maker,  without  any  fault  on  his  part, 
be  compelled  to  pay  it  twice.  To  avoid  such  a  dilemma  the  rule 
was  established."  But,  while  announcing  this  general  doctrine, 
the  court  charged  the  garnishee,  because  it  appeared  that  the 
notes  he  had  given  the  defendant  were,  at  the  time  of  the  gar- 
nishment, in  the  garnishee's  own  hands,  having,  with  other  notes, 
been  deposited  with  him  by  the  defendant,  to  indemnify  him  for 
becoming  the  defendant's  bail.  In  reference  to  this  state  of  facts 
the  court  said  :  "  When  the  process  was  served  upon  the  trustee, 
he  had  the  notes  he  had  given  in  his  own  hands,  and  under  his 
own  control  ;  and  those  notes  could  not  be  transferred  to  any 
other  person  in  the  ordinary  course  of  business,  while  he  then 
held  them,  nor  can  he  be  held  to  pay  them  again,  if  he  shall  be 
charged  in  this  suit  on  that  account.  The  reasons  on  which  the 
rule  is  founded  do  not  then  appear  to  exist  in  this  case."  ^ 

In  Vermont,  before  the  revision  of  the  statutes,  in  1836,  it  was 
held,  that  the  maker  of  a  negotiable  note  might  be  charged  as 
garnishee  of  the  payee,  notwithstanding  an  assignment  of  the 
note  before  the  attachment,  unless  notice  of  the  assignment  had 
been  given  to  the  maker.^  The  particular  provision  which  justi- 
fied this  construction,  was  that  the  maker  of  a  note,  when  sued 
by  an  indorsee,  might  not  only  have  offsets  of  all  debts  due  him 
from  the  payee  before  notice  of  the  indorsement^  but  could  give  in  ev- 
idence any  thing  which  would  equitably  discharge  him  in  an  action 
by  the  payee.  By  the  statute  of  1836,  this  provision  was  repealed 
in  relation  to  negotiable  notes,  and  the  effect  of  the  repeal  was  to 
put  all  negotiable  notes  on  the  footing  of  mercantile  paper  in  a 
commercial  country.^  Thence  followed  a  change  in  the  decisions 
of  the  court ;  and  it  was  afterwards  held,  that  the  negotiation  of 
a  note  of  this  character,  before  it  became  due,  required  no  notice 
to  the  maker,  and  would  defeat  an  antecedent  garnishment  of 
him  in  an  action  against  the  payee.^  The  same  court  subse- 
quently took  stronger  ground,  in  a  case  where  negotiable  notes 

1  Stone   V.  Dean,  5  New  Ilamp.   502.  Rev.    Statutes    of    New    Hampshire,   of 

Since  the  decisions  in  New   Hampsiiire  1843,  ch.  208,  §§  18,  19,  and   Amoskeag 

stated   in  the    text,  a   statute   lias   been  Man.  Co.  v.  Gibbs,  8  Foster,  316. 
enacted  in  that  State,  which  subjects  the  ^  Britton  v.  Preston,  9  Vermont,  257. 

maker  of  a  negotiable  note  to   be  gar-  ^  Ilinsdiil  y.  SaflTord,  11  Vermont,  309. 

nished  in  a  suit  against  the  payee,  at  any  *  Hinsdill  v.  Safford,  11  Vermont,  309  ; 

time  before  the  note  is  transferred.     See  Little  v.  Hale,  Ibid.  482. 

[501] 


§  588  GARNISHEE   AS    PARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

had  been  executed,  and  were  not  yet  due,  and  the  maker  was 
summoned  as  garnishee  of  the  payee  ;  and  said :  "  We  ought  not 
to  hohl  the  maker  of  the  notes  liable,  unless  he  could  rely  upon 
this  jiulgment  as  a  complete  defence  against  the  notes  This  he 
could  not  do,  if,  at  the  time  of  rendering  the  judgment,  the  notes 
had  been  already  indorsed,  and  the  indorsee  was  not  before  the 
court.  We  cannot  know  that  this  is  not  the  case.  But  if  we 
could  know  that  the  notes  were  now  in  the  hands  of  the  pa^^ee, 
in  order  to  hold  the  maker  liable  we  must  destroy  the  future 
negotiability  of  the  notes,  and  thus  j^ut  it  in  the  power  of  the 
holder  to  impose  upon  innocent  purchasers,  or  else  enable  the 
holder  to  defraud  the  maker  by  negotiating  the  notes  after 
the  judgment  in  the  attachment  suit.  There  seems  to  he  no  other 
mode  of  securing  the  interests  of  all  concerned,  short  of  denying  all 
right  to  attach,  hy  this  process,  the  interest  in  negotiable  paper  while 
current.''  ^ 

In  Pennsylvania,  the  distinction  between  negotiable  and  unne- 
gotiable  notes  did  not  formerly  prevail.  All  notes  were  there 
unnegotiable,  though  assignable  in  a  particular  manner  prescribed 
by  law.  Whether  the  maker  of  a  negotiable  note  could  be  held 
as  garnishee  of  the  payee,  received,  nevertheless,  an  early  de- 
cision in  that  State,  in  the  previously  cited  case  of  a  note  exe- 
cuted there  and  unnegotiable,  but  delivered  to  the  payee  in  New 
York,  where  it  was  negotiable,  and  the  maker  of  which  was, 
before  the  maturity  of  the  note,  summoned  as  garnishee  of  the 
payee.  The  court  there  said  :  "  There  is  no  judgment  or  author- 
itative dictuin,  to  be  found  in  any  book,  that  money  due  upon  such 
a  negotiable  instrument  can  be  attached  before  it  is  payable  ;  and 
in  point  of  reason,  policy,  and  usage,  as  well  as  upon  principles 

1  Hutchins  v.  Evans,  13  Vermont,  541.  must  give  notice  to  tlie  maker,  of  the 
This  decision  was  given  in  1841,  and  in  indorsement,  to  perfect  liis  riglit,  and  de- 
the  same  year  tlie  legislature  of  Vermont  feat  an  attachment;  and  tliat  informa- 
passed  a  statute  subjecting  all  ne(jotiuhle  tion  of  the  fact  of  tlie  indorsement,  from 
jKtper  to  attachment,  whether  under  or  a  mere  stranger  to  the  paper,  is  not  suffi- 
over  due,  unless  the  same  had  not  only  cient.  Peck  v.  Walton,  25  Vermont,  33. 
been  negotiated,  but  notice  thereof  given  And  where  a  resident  of  Vermont  was 
to  the  maker  or  indorser,  before  the  ser-  garnished,  who  had  executed  a  negotiable 
vice  of  trustee  process  on  him.  Williams's  note  to  a  citizen  of  Massachusetts,  pay- 
Compiled  Statutes  of  Vermont,  262;  able  at  a  bank  in  Vermont,  he  was  held 
Kimball  v.  Gay,  16  Vermont,  131  ;  Chase  to  be  chargeable,  although,  by  the  law  of 
V.  Haughton,  Ibid.  594  ;  Barney  v.  Doug-  Massachusetts,  he  could  not  have  been, 
lass,  Itt  Ibid.  98.  And  it  is  there  held,  Emerson  v.  Partridge,  27  Vermont,  8. 
that  the  indorsee  of  a  negotiable  note 
[502] 


CHAP.  XXVIII.]       GARNISHEE   AS   PARTY   TO   A   NOTE.  §  588 

of  convenience  and  equity,  we  think  it  would  be  dangerous  and 
wrong  to  introduce  and  establish  a  precedent  of  the  kind.     To 
adjudge  that  a  note,  which  passes  from  hand  to  hand  as  cash ;  on 
which  the  holder  may  institute  a  suit  in  liis  own  name  ;  which 
has  all  the  properties  of  a  bank-note  payable  to  bearer ;  which 
would  be  embraced  by  a  bequest  of  money  ;  and  which  is  actually 
in  circulation  in  another  State  ;  should  be  affected  in  this  way, 
by  a  foreign  attachment,  would  be,  in  effect,  to  overthrow  an 
essential  part  of  the  commercial   system,  and  to  annihilate  the 
negotiable  quality  of  all  such  instruments."  ^     Subsequently  the 
Supreme  Court  of  that  State  somewhat  modified  this  decided 
position.     In  1836,  a  statute  was  enacted  there,  containing  the 
following  provision :  "  From  and  after  the  service  of  such  writ 
...  all  debts  and  all  deposits  of  money,  and  all  other  effects  be- 
longing or  due  to  the  defendant,  by  the  person   or  corporation 
upon  which  service  shall  be  so  made,  shall  remain  attached  in 
the  hands  of  such  corporation  or  person,  in  the  manner  hereto- 
fore practised  and  allowed  in  the  case  of  foreign  attachment." 
In  construing  this  provision,  the  court  considered  it  broad  enough 
to  include  debts  due  by  bills  of  exchange  and  promissory  notes, 
and  that  there  is  nothing  in  their  nature  that  excludes  them  from 
its  operation  ;  but  admitted  that  their  negotiability  renders  the 
hold  of  an  attachment  upon  them  very  uncertain ;  and  held,  that 
an  attachment  is  unavailable  against  a  bond  fide  holder,  for  value, 
of  negotiable   paper,  who    obtains   it  after   attachment,    before 
maturity,  and   without    notice.      At  the    same  time    the   court 
intimated  that  the    negotiation  of   such  paper  by  a  defendant, 
after  he  has  had  notice  of  the  attachment,  is  a  fraud  upon  the 
law,   and    that  the    court   had  power   to   prevent   this,   by  im- 
pounding the  note,  taking  care  that  it  should  be  demanded  at 
maturity,  and  that  proper  notice  should  be  given  to  indorsers, 
if  necessary .2 

In  Virginia,  though  the  court  declined  to  decide  the  general 
question  whether  the  maker  of  a  negotiable  note  could,  while  the 
note  was  current,  be  garnished  in  a  suit  against  the  payee,  yet 

'  Ludlow  V.  Bingham,  4  Dallas,  47.  tion.     It    is    certainly    a  very   effectual 

2  KieflFer    v.   Ehler,   18    Penn.    State,  method,  where  it  can  be  applied  before 

388  ;  Hill  v.  Kroft,  29  Ibid.  186  ;  Day  v.  the   actual  transfer  of  the  note,  and,  if 

Zimmerman,    08    Ibid.    72;    Adams    v.  generally  adopted,  would  do  much  toward 

Avery,  2  Pittsburgh,  77.    The  suggestion  defeating   many   fraudulent   transactions 

of  impounding  the  note  is  an  important  that  are  covered  by  negotiable  paper, 
one,  and  has  not  before  met  my  observa- 

[508] 


§  588  GARNISHEE   AS   PARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

held,  that  the  title  of  an  indorsee,  acquired  before  maturity, 
without  notice  of  a  previous  attachment  of  the  note  in  such  a 
suit,  was  paramount  to  the  attachment.^ 

In  North  Carolina,  though  it  is  held  that  debts  due  by  negotia- 
ble paper  may  be  attached,^  yet  in  order  to  charge  the  maker  of  a 
negotiable  note  as  garnishee  of  the  payee,  it  must  be  shown  that 
the  payee  had  not  indorsed  the  note  to  some  other  person  before 
its  maturit}' ;  for  otherwise  it  does  not  appear  that  the  maker  is 
indebted  to  the  payee. ^ 

In  South  Carolina,  the  court  refused  to  charge  the  maker  of  a 
negotiable  note,  as  garnishee  of  the  payee,  while  the  note  was 
current,  though  the  plaintiff  offered  to  give  security  to  indemnify 
the  garnishee  against  the  note.  "  The  probability,"  said  the  court, 
"  is  so  great  that  the  absent  debtor  may  have  transferred  negotia- 
ble notes,  that  it  would  be  too  great  a  hardship  to  compel  the 
maker  to  pay  the  money,  and  resort  to  his  indemnity,  if  he  should 
be  compelled  to  pay  it  over  again."  * 

In  Louisiana,  it  was  decided,  that  the  maker  of  such  a  note 
could  not  be  charged  before  the  note  became  due,  whether  in  his 
answer  he  stated  that  he  did  not  know  who  held  his  note,  or  that 
he  knew  the  defendant  was  the  owner  of  it  at  the  time  of  the  gar- 
nishment. "  In  this  case,"  the  court  observed,  "  negotiable  paper, 
supposed  to  belong  to  the  defendant,  is  attempted  to  be  attached, 
by  interrogatories  propounded  to  the  maker,  and  upon  the  latter 
answering  that  he  does  not  know  by  whom  his  notes  are  held,  he 
is  sought  to  be  made  liable  as  if  he  had  actually  declared  himself 
indebted  to  defendant.  Untenable  as  such  a  position  would  seem 
to  be,  an  effort  has  been  made  to  support  it  by  argument.  It  is 
said  the  attachment  was  laid  in  the  garnishee's  hands  before  he 
had  notice  of  the  transfer  of  his  notes,  and  a  series  of  decisions  of 
this  court  have  been  cited  to  show  that  the  transferee  of  a  debt  is 
only  possessed,  as  regards  third  persons,  after  notice  has  been 
given  to  the  debtor  of  the  transfer  having  been  made  ;  than  this, 
there  is,  perhaps,  no  principle  of  our  laws  better  settled  ;  but  it 
obviously  applies  only  to  credits  not  in  a  negotiable  form.  As  to 
notes  indorsed  in  blank,  which  circulate  and  pass  from  hand  to 


1  Howe  V.  Quid,  28  Grattan,  1.  Ormond  v.  Moye,   11   Ibid.  564 ;  Shuler 

2  Skinner    v.    Moore,   2   Devereux   &     v.  Bryson,  65  North  Carolina,  201. 
Battle,  138.  *  Gaffney  v.  Bradford,  2  Bailey,  441. 

3  Myers   v.   Beeman,   9   Iredell,  116 ; 

[504] 


CHAP.  XXVIII.]       GARNISHEE   AS   PARTY   TO   A   NOTE.  §  588 

hand  by  mere  delivery,  it  has  never  been,  nor  can  it  be  pretended 
that  any  notice  of  transfer  is  necessary.  If,  then,  no  such  notice 
is  ever  given,  how  is  a  garnishee  who  has  issued  his  promissory 
note,  indorsed  in  blank,  to  know  in  whose  hands  it  happens  to  be 
at  the  precise  moment  when  he  is  called  upon  to  answer  inter- 
rogatories? And  if,  perchance,  he  were  to  know  that  his  note 
was  still  the  property  of  the  defendant,  and  were  so  to  declare  it, 
could  such  a  proceeding  restrain  its  negotiability  ?  Could  it 
affect  the  rights  of  a  bond  fide  holder  ?  Surely  not.  The  owner- 
ship of  negotiable  paper  is  incessantly  varying,  and  the  obligation 
of  the  maker  of  such  instruments  is  not  to  pay  to  any  particular 
person,  but  to  the  holder  at  maturity,  whoever  he  may  be.  Thus 
it  is  obvious  that  the  garnishee,  in  this  case,  could  give  no  other 
answer  than  that  he  has  made,  and  it  is  equally  obvious,  that  by 
pursuing  this  course  the  plaintiffs  have  attached  no  property  out 
of  which  their  judgment  can  be  satisfied."  ^ 

In  Georgia,  while  it  was  recognized  that  the  maker  of  a  negoti- 
able instrument  may  be  garnished,  yet  it  was  held,  that  in  order 
to  obtain  a  judgment  against  him  it  must  affirmatively  appear 
that  the  instrument  is  due,  and  belonged  to  the  defendant  after 
its  maturity  and  after  the  time  of  the  garnishment.^ 

In  Texas,  it  was  first  decided  that  the  maker  of  a  negotiable 
note  supposed  to  have  been  negotiated,  cannot  be  charged  as  gar- 
nishee of  the  payee  ;  ^  and  afterwards,  that  he  cannot  be  charged 
at  all,  while  the  note  is  current  as  negotiable  paper.* 

In  Indiana,  it  was  held,  that  the  maker  of  a  note  executed  and 
payable  in  Ohio,  and  which  by  the  law  of  Ohio  was  negotiable, 
could  not  be  charged  as  garnishee  of  the  payee,  so  as  to  defeat 
the  right  of  an  indorsee,  acquiring  the  note  before  its  maturity.^ 
Afterwards  the  court  laid  down  the  broad  doctrine,  that  such 
maker  could  not  be  held  as  garnishee  of  the  payee,  without  proof 
that  the  note  actually  remained,  at  the  time  of  the  trials  in  the 
hands  of  the  latter,  as  his  property,  or  in  the  hands  of  a  fraudu- 
lent assignee.^     Subsequently  the  court  held,  that  before  a  judg- 

•  Sheets  v.  Culver,  14  Louisiana,  449 ;  Price    v.   Brady,  Il)id.   614 ;    Bassctt    v. 

Kimball   v.   Plant,   Ibid.    511;  Erwin   v.  Garthwaite,  22  Ibid.  230 ;  Kapp  y.  Teel, 

Com.  &  R.  R.  Bank,  3  Louisiana  Annual,  83  Ibid.  811. 
186 ;  Denham  v.  Pogue,  20  Ibid.  195.  s  Smiti,  „.  Blatcliford,  2  Indiana,  184. 

2  Minis  V.  West,  38  Georgia,  18;  Bur-  «  Junction   R.   K.  Co.   v.  Cleneay,  13 

ton  V.  Wynne,  55  Ibid.  615.  Indiana,    161 ;    Stetson    v.    Cleneay,    14 

2  Wybrants  v.  Rice,  3  Texas,  458.  Ibid.   453  ;    Cadwalader    v.   Hartley,   17 

4  Igleliart   v.  Moore,  21   Texas,  501 ;  Ibid.  520. 

[505] 


§  589  GARNISHEE   AS   PARTY   TO   A   NOTE.       [CHAP.  XXVIII. 

ment  can  be  rendered  aoaiiist  the  maker,  the  phiintiff  must  show 
that  the  paper  has  matured,  and  that  at  the  time  of  maturity  it 
was  held  by  the  defendant,  or  that  it  was  not  in  the  hands  of  a 
third  party  holding-  it  hond  fide.'^ 

In  Wisconsin,  the  broad  ground  is  taken,  that  the  maker  of  a 
negotiable  note  cannot  be  held  as  garnishee  of  the  payee.^  And 
so  in  Michigan,^  Minnesota,*  and  Kentucky.^ 

In  Iowa,  the  rule  was  laid  down  that  the  maker  of  a  negotiable 
instrument  cannot  be  charged  as  garnishee  of  the  payee,  unless 
the  instrument  has  become  due,  and  is  shown  to  be,  at  the  time 
of  the  garnishment,  in  the  possession  of  the  defendant.*^  And  so 
in  California." 

In  Nebraska,  the  general  rule  that  the  maker  of  a  negotiable 
note  is  not  chargeable  as  garnishee  of  the  payee,  is  recognized ; 
but  it  is  held,  that  if  the  note  was  transferred  before  maturity  to 
an  indorsee,  voluntarily  or  fraudulently,  for  the  purpose  of  pro- 
tecting the  debt  from  the  creditors  of  the  paj^ee,  the  maker  may 
be  garnished  while  it  is  in  the  hands  of  the  indorsee.^ 

§  589.  Against  this  strong  array  of  reason  and  authority  in 
favor  of  protecting  negotiable  paper  from  attachment  while  it  is 
current,  there  are  some  cases,  to  which  we  will  now  direct  atten- 
tion. The  Supreme  Court  of  Connecticut  considered  that  no 
doubt  existed  that  a  negotiable  note,  before  it  has  been  negotiated, 
may  be  attached  on  a  demand  against  the  payee,  but  that  the  at- 
tachment was  liable  to  he  defeated  hy  the  transfer  of  the  note,  at 
any  time  before  it  falls  due.^  The  sum  of  this  is,  that  the  gar- 
nishment operates  only  on  the  rather  slender  probability  that  a 
defendant,  whose  circumstances  justify  an  attachment  against 
him,  will  hold  a  negotiable  note  in  his  possession  until  after  it 
becomes  due,  merely  to  have  its  proceeds  go  to  the  attaching 
creditor,  whom  he  might  have  paid  without  suit,  instead  of  sell- 

1  Cleneay  v.  Junction  R.   R.  Co.,  26  5  Qreer  v.  Powell,  1  Bush,  489. 
Indiana,  375;  King  v.   Vance,   46   Ibid.  ^  Commissioners  v.  Fox,  Morris,  48; 
246.  Wilson  v.  Albright,  2  G.  Greene,  125. 

2  Daris  ?'.  Pawlette,  3  Wisconsin,  300;  ^  Gregory  v.  Higgins,  10  California, 
Carson  v.  Allen,  2  Chandler,  123 ;  2  Pin-  339. 

ney,  457.  »  Clough  v.  Buck,  6  Nebraska,  343. 

3  Littlefield  v.  Hodge,  6  Michigan,  326.  9  Enos  v.  Tuttle,  3  Conn.  27. 
*  Hubbard  v.  Williams,  1  Minnesota, 

54. 

[506] 


CHAP.  XXVIII.]       GARNISHEE   AS    PARTY   TO   A   NOTE.  §  589 

ing  the  note  and  appropriating  the  proceeds  to  his  private  use. 
Where,  however,  the  note,  in  form  negotiable,  has  become  due, 
and  is  still  in  the  hands  of  the  payee,  it  was  held,  in  the  same 
State,  that  a  garnishment  of  the  maker,  in  a  suit  against  the 
payee,  would  hold  the  debt  as  against  a  subsequent  indorsee  who 
received  the  note  with  notice  of  the  garnishment.^ 

In  Tennessee,  it  is  held,  that  a  negotiable  note  may  be  attached  ; 
but  it  is  also  held,  that  the  liability  of  a  garnishee  is  conclusively 
settled  by  his  answer  ;  and  if  he  answers  that  he  does  not  know 
where  the  note  is,  or  who  holds  it,  he  does  not  admit  indebted- 
ness to  the  defendant,  and  cannot  be  charged,  although  at  the 
date  of  the  answer  the  note  may  be  overdue  ;  for  it  may  have 
been  assigned  before  it  fell  due.  But  when  the  garnishee  answers 
that  he  was  indebted  at  the  time  of  the  garnishment,  and  it  ap- 
pears that  the  note  had  not  been  assigned  before  it  loas  dishonored 
for  non-payment,  he  is  liable.^  These  views  were  entertained 
also  in  Mississippi.'^ 

In  Missouri,  it  has  always  been  held,  that  negotiable  paper  may 
be  attached.*  In  the  earliest  reported  case  in  that  State,  involv- 
ing the  question,  it  was  decided,  that  in  order  to  charge  the 
maker  of  such  paper  in  an  action  against  the  payee,  the  plaintiff 
must  prove  that,  at  the  time  of  the  garnishment,  the  defend- 
ant was  the  holder  of  the  note.^  The  court  once  went  so  far  as 
to  sanction  a  judgment  against  the  maker  of  a  negotiable  note, 
though  he  stated  in  his  answer  that  he  had  been  informed  and 
believed  that  the  note  was  assigned,  for  a  valuable  consid- 
eration, before  the  garnishment;*^  but  in  another  case,  subse- 
quently, it  was  ruled  otherwise.'  The  court  expressed  themselves 
sensible  of  the  difficulties  that  exist  in  holding  that  debts  evi- 
denced by  negotiable  paper  may  be  attached  in  the  hands  of  the 
payer,  particularly  as  the  statute  prescribes  no  mode  by  which  an 
assignee  can  be  brought  before  the  court,  and  have  his  rights  lit- 
igated. "  But,"  say  the  court,  "as  the  judgment  is  not  conclu- 
sive against  him,  unless  he   has  notice,  and  chooses  to   come  in 

1  Culver  V.  Parish,  21  Conn.  408.  *  Scott  v.    Hill,   3   Missouri,   88 ;   St. 

'i  Huff  V.  Mills,  7  Yerger,  42 ;  Turner  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Ibid. 
V.    Armstrong,   9    Ibid.   412;    Moore    v.  421;  Quarles  y.  Porter,  12  Ibid  76;  Col- 
Greene,   4   Humphreys,  299  ;    Daniel   v.  cord  v.  Daggett,  18  Ibid.  557. 
Rawlings,  6  Ibid.  403.  5  Scott  v.  Hill,  3  Missouri,  88. 

3  Yarborough  v.  Thompson,  3  Smodes  «  Quarles  v.  Porter,  12  Missouri,  76. 

&  Marsliall,  291 ;  Thompson  v.  Shelby,  ^  Walden  v.  Valiant,  15  Missouri,  409. 


Ibid.  296. 


[507] 


§  590  GARNISHEE   AS   PARTY   TO   A   NOTE.       [OHAP.  XXVIII. 

and  interplead,  he  would  have  a  right,  at  any  subsequent  time, 
before  the  money  was  paid  over  to  the  attaching  creditor,  to 
arrest  the  payment,  or,  after  payment^  a  right  to  his  action,  to  re- 
cover it  hack.''''  1  This  position,  however,  was  afterwards  aban- 
doned.2 

In  Maryland,  the  courts  have  gone  to  greater  lengths  in  sus- 
taining the  attachment  of  negotiable  paper  than  in  any  other 
State.  It  was  there  held,  at  an  early  day,  that  the  garnishment 
of  the  maker  of  a  note  in  a  suit  against  the  payee,  before  the 
note  is  passed  away  by  the  latter,  whether  before  or  after  it  be- 
comes due,  will  be  sustained.^  This,  of  course,  involves  the  total 
destruction  of  the  negotiability  of  the  note,  and  constitutes  a  fit 
foundation  for  a  subsequent  unexampled  decision  of  the  Court  of 
Appeals  of  that  State,  holding  that,  where  the  maker  of  a  negoti- 
able note  is,  before  its  maturity,  summoned  as  garnishee  of  one 
who  then  owns  the  note  as  an  indorsee,  and  judgment  is  rendered 
against  him,  the  judgment  will  protect  him  against  an  action  on 
the  note,  brought  by  a  subsequent  indorsee,  who  acquired  title  to 
the  paper  before  its  maturity,  and  without  any  knowledge  of  the 
attachment.* 

§  590.  In  concluding  this  review  of  the  reported  decisions  in 
this  country  on  this  important  subject,  it  is  proper  to  remark, 
that  in  none  of  the  States  where  the  attachment  of  negotiable 
paper  has  been  sustained,  are  the  statutory  provisions  as  to  the 
general  scope  and  effect  of  an  attachment,  more  comprehensive 
than  in  those  States  where  the  contrary  position  is  taken.  In 
every  State  the  defendant's  credits  may  be  attached  ;  and  that 
term  is,  as  to  this  question,  fully  as  comprehensive,  as  if  the  stat- 
ute also  authorized  —  as  is  frequently  the  case — the  attachment 
of  rights  or  effects. 

1  Quarles  v.  Porter,  12  Missouri,  76  ;  value  from  acquiring  a  good  title,  would 
Colcord  V.  Daggett,  18  Ibid.  557.  be  almost  a  destruction   of  one  of  the 

2  Funkliouser  v.  How,  24  Missouri,  essential  cliaracteristics  of  negotiable 
44  ;  Dickey  v.  Fox,  Ibid.  217.  paper.     It  would   be   a  great  injury  to 

3  Steuart  v.  West,  1  Harris  &  John-  persons  in  embarrassed  circumstances 
son,  5-36.  holding  such   paper ;   for  no   one   could 

*  Somerville   v.   Brown,   5    Gill,   399.  buy  it  from  them   with  any   confidence 

In  KiefFer  v.  Ehler,  18  Penn.  State,  388,  in  the  title.     Moreover,  it  would  present 

the   court   use    the   following   language,  the   strange   result,   that   the   more    hands 

which    is    strikingly    illustrative    of    the  such  paper  had  passed  through,  and  the  more 

fundamental  error  of  the  Maryland  deci-  indorsers  there  were  on  it,  the  less  it  would  be 

sion:  "  To  hold  that  an  attachment  pre-  worth  in  the  money  market;  for  it  would  be 

vents  a  subsequent  bona  fide  indorsee  for  subject  to  the  more  risks  of  attachment." 
[508] 


CHAP.  XXVni.]       GAKNISHEE   AS   PARTY   TO   A   NOTE.  §  592 

§  591.  It  will  have  been  observed  that  some  of  the  courts 
whose  decisions  have  been  referred  to,  indicate  that  an  attach- 
ment of  negotiable  paper  will  prevail  against  one  who  acquires 
title  after  the  attachment,  with  notice  of  it.  If  notice  is  to  have 
this  effect,  an  important  question  arises  as  to  what  will  constitute 
notice.  In  Pennsylvania,  it  is  considered  that  the  doctrine  of 
implied  notice  by  lis  pendens  is  inapplicable  to  such  cases. ^  It 
can  hardly  be  doubted  that  the  only  safe  and  consistent  rule  is 
that  the  notice  must  be  actual. 

§  592.  When  one  is  garnished  who  holds  no  relation  of  debtor 
to  the  defendant,  except  as  having,  before  the  garnishment, 
made  a  negotiable  note  to  him,  he  should  carefully  avoid  in  his 
answer  any  admission  of  indebtedness  ;  for  if,  in  disregard  of  the 
rights  which  may  have  been  already  acquired,  or  which,  before 
the  maturity  of  the  note,  may  be  acquired,  by  indorsees,  he  ad- 
mit a  debt,  and  be  charged  in  respect  thereof,  his  payment  as 
garnishee  will  be  no  protection  to  him  against  an  action  on  the 
note,  by  one  who  acquires  the  same  bond  fide,  before  its  matu- 
rity ;  except  in  Maryland ;  and  there,  only  until  the  true  princi- 
ples of  law  shall  have  asserted  their  supremacy  over,  or  wise 
legislation  shall  have  supplanted,  the  anomalous  and  dangerous 
doctrine  there  established.^ 

1  Kieffer  v.  Ehler,  18  Penn.  State,  388.  2  Ormond  v.  Moye,  11  Iredell,  564. 

[509] 


§  594  garnishee's   liability  [chap.  XXIX. 


CHAPTER    XXIX. 

THE   garnishee's   LIABILITY,   AS    AFFECTED    BY   PRE-EXISTING 
CONTRACTS   WITH   THE   DEFENDANT,    OR   THIRD   PERSONS. 

§  593.  We  have  previously  shown  that  the  garnishment  pro- 
ceeding cannot  be  used  to  change  the  nature  of  an  existing  con- 
tract between  the  garnishee  and  the  defendant,  and  to  compel  the 
former  to  pay  in  money  what  he  had  agreed  to  pay  in  something 
else.i  We  have  also  considered  the  liability  of  a  garnishee  in 
respect  of  the  defendant's  property  in  his  hands,  as  affected  by 
pre-existing  contracts  entered  into  by  him  in  relation  thereto.^ 
There  are  oftentimes  such  contracts  in  regard  to  the  garnishee's 
indebtedness  to  the  defendant ;  and  we  will  now  exhibit  such 
cases  as  refer  particularly  to  that  position  of  affairs  between  those 
parties. 

§  594.  It  is  an  unquestionable  doctrine  that  the  garnishment  of 
a  person  cannot  be  permitted  to  interfere  with  a  contract  entered 
into  between  him  and  a  third  person,  with  reference  to  his  in- 
debtedness to  the  defendant.  Thus,  where  A.  drew  a  bill  of 
exchange  on  B.  in  favor  of  C,  which  was  indorsed  by  C.  to  D., 
his  factor,  and  then  accej)ted  by  B.,  and  afterwards  B.  was  gar- 
nished in  a  suit  against  C. ;  it  was  held,  that  B.'s  acceptance  was 
an  express  contract  to  pay  D.,  the  factor,  and  that  B.  could  not, 
therefore,  be  held  as  garnishee  of  C,  the  principal.^  So,  where 
A.  employed  B.,  at  an  annual  salary  of  $900,  and  a  short  time 
after  the  engagement  commenced,  B.  requested  that  his  salary 
might  be  paid,  as  it  accrued,  to  his  father,  to  whom  he  was  in- 
debted ;  and  A.,  with  the  approval  of  the  father,  agreed  so  to  do  ; 
it  was  held,  that  A.  could  not  be  charged  as  garnishee  of  B.  The 
court  said  :  "  The  statement  shows  clearly  a  special  agreement 
between  A.  and  B.'s  father,  at  the  instigation  of  the  son,  to  pay 
the  father  the  wages  due  and  to  become  due  to  the  son.    Such  an 

1  Ante,  §  550.  3  Van   Staphorst   v.   Pearce,  4 

2  Ante,  Oil.  XXIII.  258. 

[510] 


CHAP.  XXIX.]     AS  AFFECTED  BY  PREVIOUS  CONTRACTS. 


594 


agreement,  once  being  made,  it  was  not  in  the  po\yer  of  the  son 
to  revoke  it  without  the  father's  consent."  ^  So,  although  a  father 
is  in  law  entitled  to  the  earnings  of  a  minor  son,  he  may  transfer 
to  the  son  a  right  to  receive  them  ;  and  where  such  a  contract  is 
entered  into  without  any  fraud,  for  the  advantage  of  the  son,  he 
is  entitled  to  the  avails  of  his  labor,  and  they  cannot  be  attached 
for  his  father's  debt.  And  in  such  case,  if  the  father  knows  of 
the  son's  making  a  contract  for  his  services  on  his  own  account, 
and  makes  no  objection  to  it,  there  is  an  implied  assent  that  the 
son  shall  have  his  earnings.^  So,  where  the  defendant  was  in- 
debted to  the  garnishees,  in  the  sum  of  $2,000,  and  agreed  to 
serve  them  as  bookkeeper  for  a  year,  at  a  salary  of  81,500,  pay- 
able monthly  ;  and  that  he  should  receive  in  money  only  enough 
to  pay  the  necessary  expenses  of  his  family,  and  the  remainder 
of  his  salary  was  to  be  applied  to  the  liquidation  of  his  debt ; 
and  the  garnishees  had  paid  him  $500,  which  was  a  reasonable 
sum  for  his  family  expenses ;  it  was  held,  that  they  could  not  be 
charged .3  So,  where  the  garnishee  had  become  bail  for  another, 
on  condition  that  the  latter  should  work  for  him,  and  the  wages 
should  remain  in  the  garnishee's  hands,  to  indemnify  him  for  his 
liability  ;  it  was  held,  that  the  contract  could  not  be  interrupted 
by  the  garnishment,  but  should  be  sustained,  and  the  respective 
rights  of  the  parties  preserved  under  it.-*  So,  where  A.  was  in- 
debted to  B.,  and  B.  agreed  to  receive  payment  thereof  in  shoe- 
maker's work  to  be  done  by  a  firm  in  which  A.  was  a  partner ; 
and  work  to  the  amount  of  the  debt  was  done  by  the  firm  for 
B. ;  and  thereafter  B.  was  summoned  as  garnishee  of  A.  ;  he  was 
held  not  to  be  chargeable.^  So,  where  a  railroad  company  was 
summoned  as  garnishee  of  one  who  had  contracted  to  do  certain 
work  upon  the  road,  and  the  contract  contained  a  stipulation 
which  authorized  the  company,  if  it  saw  fit,  to  see  that  the  labor- 
ers employed  by  the  contractor  were  paid,  and  to  withhold  from 
him  an  amount  of  his  earnings  sufficient  for  that  purpose,  and  to 
use  it  in  paying  the  laborers ;  it  was  held,  that  the  garnishment 
of  the  company  could  not  have  the  effect  of  setting  aside  this 

1  Swisher  v.  Fitch,  1  Smedes  &  Mar-  3  Hall  v.  Magee,  27  Ahibama,  414. 

shall,  541 ;  White  v.  Richardson,  12  New  ^  Wliite  v.  Richardson,  12  New  Hamp. 

Hamp.  93;  Vincent  v.  Watson,  18  Penn.     93. 
State,  96.  ^  Russell  v.   Convers,   7  New  Hamp. 

••i  Whiting  V.  Earle,  3  Pick.  201 ;  Man-     343. 
Chester  v.  Smitii,  12  Ibid.   113;  Bray  v. 
Wheeler,  29  Vermont,  614. 

[511] 


§  594  garnishee's  liability  [chap.  xxix. 

contract,  and  that  the  company  had  the  right  to  hold  whatever 
was  due  the  contractor  until  the  laborers  were  paid  by  him,  or 
itself  apply  the  amount  to  such  payment,^  So,  where  one  agreed 
to  work  for  a  firm,  under  an  understanding  assented  to  by  all  the 
parties,  that  his  wages  should  be  paid  by  applying  the  same  to 
the  payment  of  the  rent  of  a  house  occupied  by  him  as  a  tenant 
of  one  of  the  firm  ;  it  was  held,  that  the  firm  were  exonerated 
from  any  other  mode  of  payment,  and  could  not  be  charged  as 
his  garnishee  on  account  of  wages  earned  by  him.^  So,  where 
A.  sold  to  B.  a  stock  of  goods,  and  B.  agreed  to  pay  for  them  by 
paying  a  debt  of  A.  to  C,  for  which  B.  was  security,  and  also 
by  paying  the  debts  which  A.  owed  for  the  stock  ;  it  was  held, 
that  B.  could  not  be  charged  as  garnishee  of  A.  ;  at  least,  not 
until  he  had  violated  his  contract.^  So,  where  a  company  was 
summoned  as  garnishee  of  one  of  its  employees,  and  it  appeared 
that  the  latter,  when  he  entered  its  employment,  had  signed  an 
agreement  that  the  company  might  pay  his  wages  at  such  times 
and  in  such  parts  as  it  might  from  time  to  time  elect ;  that  he 
w^ould  continue  in  its  emplojauent,  unless  the  contract  should  be 
terminated  by  mutual  consent,  until  the  expiration  of  thirty 
days'  notice  of  his  intention  to  leave  ;  and  that  if  he  should  leave 
without  first  giving  and  "  working  out  "  such  notice,  all  wages 
should  be  liable  to  forfeiture  to  the  company  ;  it  was  held,  that  the 
contract  was  valid,  and  that  so  long  as  it  remained  unbroken  by  the 
company,  the  defendant  would  have  no  right  of  action  for  any  ar- 
rears of  wages  until  after  the  expiration  of  the  required  notice  by 
him ;  and  no  such  notice  having  been  given,  the  company  was 
not  chargeable  as  his  garnishee.^  So,  where  an  agreement  existed 
before  the  garnishment,  between  the  garnishee  and  the  defend- 
ant, that  the  wages  of  the  defendant,  which  it  was  sought  to 
reach  by  the  attachment,  should  be  ]3aid  weekly  in  advance,  it 
was  held  that  the  attachment  could  not  defeat  the  agreement.^ 
So,  where  the  garnishee  had  bought  land  of  the  defendant,  and 
paid  him  part  of  the  purchase  money,  and  by  agreement  with  the 
defendant,  the  remainder  was  allowed  to  stay  in  the  garnishee's 

1  Taylor  v.  Burlington  &  M.  R.  R.  Co.,  <  Potter  v.  Cain,  117  Mass.  238. 

5   Iowa,    114.     See   Doyle    v.  Gray,  110  ^  Mines  v.  Pyle,  4  Houston,  640 ;  Cal- 

Mass.  206.  lagan  v.  Pocasset  Man.   Co.,  liy  Mass. 

•■^  Mason  v.  Ambler,  6  Allen,  124.  173. 

3  Watkins  v.  Pope,  38  Georgia,  514, 
See  Huntington  v.  Risdon,  43  Iowa,  517. 
[512] 


CHAP.  XXIX.]    AS  AFFECTED  BY  PREVIOUS  CONTRACTS.  §  595 

hands,  as  an  indemnity  against  his  liability  as  surety  upon  a  note 
of  the  defendant,  which  was  unpaid ;  it  was  held,  that  the  gar- 
nishee could  not  be  charged.^  So,  where  A.,  a  railway  contractor, 
entered  into  a  written  contract  with  B.  &  C,  whereby  the  latter 
agreed  to  construct  a  portion  of  the  railway,  and  the  contract 
contained  a  stipulation  authorizing  A.,  whenever  in  his  opinion 
it  might  be  necessary  to  secure  their  wages  to  the  laborers  em- 
ployed by  B.  &  C,  to  pay  the  laborers,  and  such  payments  should 
be  deducted  from  the  amount  which  might  be  payable  to  B.  & 
C. ;  and  in  pursuance  of  this  arrangement,  A.  contracted  with 
all  the  laborers  to  pay  them  their  wages  ;  it  was  held,  that  A. 
could  not  be  charged  as  garnishee  of  B.  &  C.  for  an  unpaid  bal- 
ance due  them  on  the  contract,  which  was  not  sufficient  to  pay 
the  amount  owing  to  the  laborers.^ 

§  595.  A  question  arises  here,  as  to  the  effect  of  the  Statute  of 
Frauds  on  verbal  contracts  entered  into  by  the  garnishee,  with 
third  persons,  and  coming  within  the  terms  of  the  statute,  and 
which  he  sets  up  in  discharge  of  his  liability  to  the  defendant. 
In  Vermont,  it  has  been  decided  that  such  contracts  cannot  be 
set  up  by  the  garnishee,  so  as  to  defeat  the  recourse  of  the  attach- 
ing plaintiff  against  him.^  This  proceeds  upon  the  erroneous 
idea,  that  a  verbal  contract  coming  within  the  terms  of  the  stat- 
ute is  absolutely  void  ;  but  the  better  view  doubtless  is  that  taken 
by  the  Supreme  Court  of  Massachusetts,  holding  the  contract  not 
absolutely  void  per  se,  but  that  no  action  can  be  maintained  on 
it,  if  the  party  sought  to  be  charged  plead  the  statute,  and  that 
the  privilege  of  pleading  it  is  a  personal  one,  and  may  be  waived, 
if  the  party  choose.  Therefore,  where  the  defendant  kept  a 
boarding-house  for  the  workmen  employed  in  the  garnishee's 
manufactory,  and  the  garnishee  became  indebted  to  the  defend- 
ant for  their  board  ;  but,  when  the  defendant  began  to  keep  the 
house,  it  was  verbally  agreed  between  the  defendant,  the  gar- 
nishee, and  several  third  persons,  who  subsequently  furnished 
her  with  provisions  and  other  supplies,  that  the  supplies  should 
be  delivered  and  charged  to  the  defendant,  and  that  at  the  end 
of  each  quarter  the  garnishee  would  see  that  the  persons  who 

1  St.  Louis  17.  Re^enfuss,  28  Wisconsin,  ^  Ilazeltine  v.  Pa^e,  4  Vermont,  49; 
144.                                                                    Strong  v.  Mitchell,  I'J  Ibid.  644. 

2  Balliet  v.  Scott,  32  Wisconsin,  174. 

33  [513] 


§  597  gaenishee's  liability,  etc.  [chap.  xxix. 

furnished  them  were  paid  ;  the  court  held,  that  whatever  the 
garnishee  was  liable  for  on  this  guaranty,  must  go  to  discharge 
his  debt  to  the  defendant,  and  that  the  garnishee,  though  his  un- 
dertaking was  within  the  statute,  was  not  bound,  against  his 
own  choice,  to  set  up  that  statute  in  order  to  avoid  his  promise. ^ 

§  596.  But  where  a  garnishee  relies  on  a  contract  with  a  third 
person,  as  affecting  his  liability  to  the  defendant,  it  must  appear 
that  such  third  person  stood  in  such  position  as  to  have  a  legal 
right  to  enter  into  the  contract,  and  that  it  was  entered  into  with 
the  defendant's  assent ;  otherwise  it  will  be  unavaihng.  Thus, 
where  A.  disclosed,  as  garnishee,  that  he  had  executed  a  note  to 
B.,  the  defendant,  which  was  transferred  by  B.  to  C,  as  collateral 
security  for  a  debt  due  to  C. ;  and,  before  the  garnishment,  A.  paid 
C.  a  part  of  the  note,  and  C.  thereupon,  without  B.'s  knowledge, 
released  him  from  any  further  claim  upon  it ;  it  was  held,  that 
C.  had  no  legal  right  to  discharge  A.  from  liability  for  the  bal- 
ance, without  B.'s  assent,  and  A.  was  accordingly  charged  as 
garnishee  in  respect  thereof.^ 

§  597.  Where  the  garnishee  is  indebted,  it  will  not  vary  his 
liability  that  his  contract  with  the  defendant  is  to  pay  the  money 
in  another  State  or  country  than  that  in  which  the  attachment 
is  pending.  Thus,  where  it  was  urged  as  a  ground  for  discharg- 
ing a  garnishee,  that  his  debt  to  the  defendant  was  contracted  in 
England,  and  was  payable  there  only,  so  that  the  defendant 
could  not,  and  therefore  the  plaintiff  could  not,  make  it  paj^able 
elsewhere,  the  court  said:  "We  do  not  perceive  any  legal  prin- 
ciple upon  which  the  objection  rests.  This  was  a  debt  from  the 
garnishee  everywhere,  in  whatever  country  his  person  or  property 
might  be  found.  A  suit  might  have  been  maintained  by  the  de- 
fendant here,  and  therefore  the  debt  may  be  attached  here."  ^ 
So,  where  the  debt  was  contracted  where  the  garnishment  took 
place,  but  the  garnishee  agreed  to  pay  the  money  in  another 
State,  he  was  nevertheless  charged ;  the  court  referring  to  the 
case  just  cited  as  sustaining  their  decision.* 

1  Cahill    V.   Bigelow,   18    Pick.   369;  3  Blake  u.  Williams,  6  Pick.  286. 

Swett  V.  Ordway,  23  Ibid.  266.  ■*  Sturtevant    v.   Robinson,    18    Pick. 

-  Wiggin  V.   Lewis,    19  New  Hamp.     175. 
548. 

[514] 


CHAP.  XXX.]  FKATJDTJLENT   ATTEMPTS.  §  599 


CHAPTER    XXX. 

THE  GAEiSTISHEE's  LIABILITY  AS  AFFECTED  BY  A  FRAUDULENT 
ATTEMPT  BY  THE  DEFENDANT  TO  DEFEAT  THE  PAYMENT  OF 
HIS   DEBTS. 

§  598.  Cases  have  arisen,  in  which  a  person  indebted  has 
sought  to  prevent  his  effects  from  being  reached  for  the  payment 
of  his  debts,  by  selling  property,  and  taking  promissory  notes 
therefor  payable  to  third  persons,  in  the  expectation  that  such 
notes  could  not  be  reached  by  garnishment.  All  such  attempts, 
being  in  fraud  of  just  creditors,  have  been  discountenanced 
wherever  made,  and,  if  the  circumstances  permitted,  without 
violating  established  legal  principles,  have  been  defeated. 

§  599.  Thus,  in  Vermont,  it  appeared  from  the  answer  of  the 
garnishee  that  he  had  been  indebted  to  the  defendant ;  that  the 
defendant  said  to  him  he  was  afraid  his  creditors  would  attach 
the  debt,  and  desired  the  garnishee  to  give  notes  payable  to  a 
third  person,  which  was  done,  without  the  concurrence  or  knowl- 
edge of  the  third  person.  The  court  said  :  "  We  could  not  feel 
justified  to  allow  so  obvious  a  subterfuge  to  interpose  any  obstacle 
in  the  way  of  this  process.  If  the  person  to  whom  the  note  is 
payable  is  now  the  bond  fide  holder  of  this  note,  and  received  it 
in  the  due  course  of  business,  while  it  was  still  current,  the  in- 
terest thus  acquired  cannot  be  defeated  by  this  process,  although 
pending  at  the  time  the  holder  acquired  a  title  to  it.  But  if  the 
holder  took  the  note  when  overdue,  he  took  it  subject  to  all  the 
defences  which  existed  while  the  note  was  in  the  hands  of 
the  defendant.  Among  such  defences  may  be  reckoned  attach- 
ment by  this  process."  ^  So,  in  New  Hampshire,  where  A.  sold 
property  to  B.,  and  unnegotiable  notes  therefor  were  executed 
to  C,  a  resident  in  another  State,  who  was  unknown  to  B. ;  and 

I  Camp  V.  Clark,  14  Vermont,  387.  v.  Davis,  24  Vermont,  363 ;  Kesler  v 
See  Bibb  v.  Smitli,  1  Dana,  680 ;  Marsli     St.  John,  22  Iowa,  605. 

[515] 


§  600  FRAUDULENT  ATTEMPTS.  [CHAP.  XXX. 

A.,  at  the  time  of  selling  the  property  and  taking  the  notes, 
said  lie  was  owing  some  debts  that  he  never  meant  to  pay,  and 
some  that  he  would  pay  when  he  was  ready  ;  the  court  held  the 
transaction  fraudulent  as  to  A.'s  creditors,  and  charged  B.  as  his 
garnishee.!  So,  in  Connecticut,  where  A.,  with  a  view  to  keep 
his  property  out  of  the  reach  of  his  creditors,  and  in  pursuance 
of  a  combination  with  B.  for  that  purpose,  sold  goods  belonging 
to  him  as  the  property  of  B.,  and  took  from  the  vendee  a  nego- 
tiable note,  payable  to  B.  at  a  future  day,  which  B.  assigned, 
before  it  became  due,  to  C,  who  was  acquainted  with  the  trans- 
action ;  it  was  held,  that  the  vendee  was  the  debtor  of  A.,  and 
was  therefore  liable  as  his  garnishee.^  So,  where  a  husband 
traded  a  manufacturing  establishment  belonging  to  himself  and 
partner,  for  a  tract  of  land,  taking  the  conveyance  of  the  land  to 
his  wife  to  defraud  creditors ;  and  afterwards  sold  the  land  and 
took  a  note  for  the  unpaid  price,  to  his  wife ;  which  remained  in 
her  hands  until  after  its  maturity,  and  until  the  maker  was  gar- 
nished by  a  creditor  of  the  firm  of  which  the  husband  had  been  a 
member ;  it  was  held,  that  as  there  were  involved  no  rights  of 
innocent  assignees  of  the  note,  the  amount  thereof  was  subject  to 
the  garnishment.^ 

§  600.  In  Massachusetts  this  case  arose.  A.  collected  in  New 
York,  a  sum  of  money  for  B.  in  Boston,  and  had  it,  on  his  return 
to  the  latter  place,  in  a  thousand-dollar  bill.  Seeing  B.,  he  in- 
formed him  that  he  had  the  money  in  that  shape,  and  would  then 
have  paid  B.  the  amount  due  him,  if  the  bill  could  have  been 
changed.  As  that  could  not  then  be  done,  B.  requested  A.  to 
give  him  his  negotiable  note  for  the  amount  due  him  ;  in  respect 
of  which,  by  the  law  of  Massachusetts,  A.  could  not  be  charged 
as  garnishee  of  B.  The  note  was  given,  and  immediately  after- 
ward A.  was  garnished.  Facts  in  the  case  tended  to  show  that 
the  note  was  given  for  the  purpose  of  preventing  the  amount  col- 
lected by  A.  from  being  reached  by  the  creditors  of  B.  by  gar- 
nishment ;  and  it  was,  therefore,  contended  that  A.  was  still  th^ 
debtor  of  B.,  and  therefore  liable  ;  but  the  court  held  the  note 
to  be  a  payment  pro  tanto,  and  that  the  garnishee  was  not 
chargeable.* 

1  Green  v.  Doughty,  6  New  Hamp.  572.  3  Patton  v.  Gates,  67  Illinois,  164. 

2  Enos   V.   Tuttle,   3    Conn.   27.     See  *  Wood  v.  Bodwell,  12  Pick.  2G8. 
Price  V.  Bradford,  4  Louisiana,  35. 

[516] 


CHAP.  XXX.]  FEAUDULENT   ATTEMPTS.  §601 

§  601.  In  all  cases  where  one  indebted  to  another  gives  an  ob- 
ligation to  pay  the  debt  to  a  third  person,  it  may  be  considered 
as  a  sound  rule,  that,  in  order  to  make  such  obligation  effectual 
to  defeat  an  attachment  of  the  debt  as  due  to  the  original  cred- 
itor, it  must  be  shown  that  the  obligation  to  the  third  person  was 
hond  fide  and  upon  adequate  consideration.^  If  the  debtor  give 
such  an  obligation  in  good  faith,  not  knowing  of  any  fraudulent 
intent  in  the  other  parties,  and  pay  the  obligation  in  the  hands 
of  an  assignee,  he  cannot  be  charged  as  garnishee  of  him  to 
whom  the  debt  was  primarily  owing.^ 

'  Lano-ley  v.  Berry,  14  New  Hamp.  82.  2  Diefendorf  v.  Oliver,  8  Kansas,  365. 

[517] 


§  002  garnishee's   liability   as   affected      [chap.  XXXI. 


CHAPTER    XXXI. 

THE  GAENISHEE's   LIABILITY,  AS   AFFECTED   BY   AN   EQUITABLE 
ASSIGNMENT  OF   THE   DEBT. 

§  602.  We  have  previously  seen  ^  that  an  equitable  assignment 
of  personal  property  of  a  defendant  in  the  hands  of  a  garnishee, 
will  relieve  the  latter  from  liability  as  garnishee  on  account  of 
such  property.  We  come  now  to  the  application  of  the  same 
principle  to  a  debt  due  from  the  garnishee  to  the  defendant. 
When  it  is  sought  to  reach  by  garnishment  a  credit  of  the  de- 
fendant, it  must  be  both  legally  and  equitably  due  him.  There- 
fore, a  debt  due  to  one  as  a  trustee  for  another,  cannot  be 
attached  in  an  action  against  the  trustee,  because  though  legally 
due  him,  it  is  not  his  property,  but  another's.  Thus,  a  note  hav- 
ing been  placed  in  the  hands  of  an  attorney  at  law  for  collection, 
he  extended  the  time  of  payment,  and  took  a  new  obligation  in 
his  own  name.  A  creditor  of  the  attorney  sought  to  subject  the 
debt  secured  by  this  obligation  to  the  payment  of  a  debt  due  him 
from  the  attorney.  The  evidence  showed  that  the  latter  did  not 
take  the  obligation  in  his  own  right,  or  for  his  own  benefit ;  and 
it  was  held,  that  the  attachment  could  not  be  sustained.^  So, 
where  A.  undertook  to  furnish  B.  certain  locks,  and  did  furnish 
them  to  a  certain  amount.  Afterwards  B.  was  summoned  as 
garnishee  of  A.,  and  after  the  garnishment  he  received  notice 
that  A.  was  doing  business  merely  as  the  agent  of  another :  it 
Avas  held,  that  B.  was  not  chargeable  as  garnishee  of  A.^  So, 
where  one  was  summoned  as  garnishee  of  J.  S.,  and  answered 
that  he  had  executed  a  note  to  J.  S.,  and  given  a  mortgage  to 
secure  its  payment ;  but  that  he  received  the  consideration  there- 
of from  S.  H.  S.,  the  father  of  J.  S.,  and  always  paid  the  interest 
thereon  to  him  ;  and  that  he  had  never  known  J.  S.,  or  transacted 
any  business  with  him ;  and  it  appeared  in  evidence  that  the 

1  Ante,  Ch.  XXIV.  ^  Rodgers  v.  Hendsley,  2  Louisiana,  597. 

3  Kaley  v.  Abbot,  14  New  Harap.  359. 
[518] 


CHAP.  XXXI.]       BY   AN   ASSIGNMENT    OF   THE   DEBT.  §  603 

note  was,  at  the  death  of  S.  H.  S.,  found  by  his  executors  among 
his  papers,  and  was  scheduled  by  S.  H.  S.  as  a  part  of  his  assets  ; 
and  that  S.  H.  S.  was  in  the  habit  of  lending  money  on  notes  and 
mortgages,  taking  the  securities  in  the  names  of  his  different  rela- 
tives ;  that  he  never  surrendered  his  right  to  them  when  he 
retained  possession  of  the  papers,  but  considered  them  as  his  own 
property,  and  such  was  the  case  with  the  note  in  question  ;  that 
the  note  never  was  in  the  possession  of  J.  S.,  nor  did  he  ever 
make  any  claim  to  it ;  but  on  the  contrary,  S.  H.  S.,  when  it  was 
given,  told  the  maker  that  he  would  always  find  it  in  his  posses- 
sion ;  it  was  held,  that  the  note  did  not  belong  to  J.  S.,  and  that, 
therefore,  the  garnishee  could  not  be  charged.^ 

The  same  principle  is  applicable  to  all  cases  of  equitable 
assignments  of  debts,  where  the  defendant  may  be  legally  en- 
titled to  collect  the  debt,  but  not  for  his  own  benefit. 

§  603.  The  doctrine  which  establishes  the  assignability  in 
equity  of  choses  in  action,  arises  from  the  public  utility  of  in- 
creasing the  quantity  of  transferable  propert}^  in  aid  of  commerce 
and  of  private  credit.^  It  is  a  well-known  rule  of  the  common 
law,  that  no  possibility,  right,  title,  or  thing  in  action,  can  be 
granted  to  third  persons.  Hence,  a  debt,  or  other  chose  in  action, 
could  not  be  transferred  by  assignment,  except  in  case  of  the 
king  ;  to  whom  and  by  whom  at  the  common  law  an  assignment 
of  a  chose  in  action  could  always  be  made  ;  for  the  policy  of  the 
rule  was  not  supposed  to  apply  to  the  king.  So  strictly  was  this 
doctrine  construed,  that  it  was  even  doubted  whether  an  annuit}'' 
was  assignable,  although  assigns  were  mentioned  in  the  deed  cre- 
ating it.  And  at  law,  with  the  exception  of  negotiable  instru- 
ments and  some  few  other  securities,  this  still  continues  to  be  the 
general  rule,  unless  the  debtor  assents  to  the  transfer  ;  but  if  he 
does  assent,  then  the  right  of  the  assignee  is  complete  at  law,  so 
that  he  may  maintain  a  direct  action  against  the  debtor,  upon  the 
implied  promise  to  pay  him  the  same,  which  results  from  such  as- 
sent. But  courts  of  equity  have  long  since  totally  disregarded 
this  nicety.  They  accordingly  give  effect  to  assignments  of 
choses  in  action.  Every  such  assignment  is  considered  in  equity 
as  in  its  nature  amounting  to  a  declaration  of  trust,  and  to  an 
agreement  to  permit  the  assignee  to  make  use  of  the  name  of  the 

1  Leland  v.  Sabin,  7  Foster,  74.  '^  Dix  v.  Cobb,  4  Mass.  508. 

[519] 


§  604  garnishee's    liability   as    affected       [chap.  XXXI. 

assignor,  in  order  to  recover  the  debt,  or  to  reduce  the  property 
into  possession. 1 

§  G04.  Hence  where  it  appears  that  a  debt  due  from  the  gar- 
nishee to  the  defendant  liad  been  equitably  assigned  before  the 
garnishment,  the  court  will  take  cognizance  of  the  assignment 
and  protect  the  rights  of  the  assignee.  For,  as  the  defendant  has 
parted  with  his  interest  in  the  debt,  and  can  no  longer  maintain 
an  action  for  it  against  the  garnishee,  for  his  own  benefit ;  and 
as  the  plaintiff  can  acquire  no  greater  interest  in  the  debt  than 
.  the  defendant  had  at  the  time  of  the  garnishment ;  it  results  that 
the  garnishee  cannot  be  charged  for  that  which,  equitably,  he  has 
ceased  to  owe  to  the  defendant,  and  owes  to  another  person. 

The  extent  to  which  courts  will  protect  the  rights  of  parties 
under  equitable  assignments,  is  illustrated  by  the  following  case : 
A.  made  a  contract  with  B.  in  relation  to  some  wool,  the  effect 
of  which  was,  that  A.  still  retained  an  interest  in  the  same,  dur- 
ing the  process  of  manufacturing  it.  B.  agreed  to  effect  an 
insurance  on  the  wool  for  the  benefit  of  A.,  and  procured  a  policy 
in  his  own  name,  in  pursuance  of  that  agreement,  and  for  that 
object.  After  the  making  of  the  policy,  and  before  a  loss  under 
it,  B.  informed  A.  that  he  had  effected  an  insurance  for  A.'s 
benefit,  pursuant  to  the  previous  stipulation.  Afterward  the 
wool  was  destroyed  by  fire,  and  the  insurance  company  was  sum- 
moned as  garnishee  of  B.  ;  and  A.  became  a  party  to  the  suit, 
claiming  the  insurance  money  under  his  arrangement  with  B.  It 
was  held,  that  A.  had  an  equitable  interest  in  the  policy,  equiva- 
lent to  that  of  an  assignee  of  a  chose  in  action,  and  sufficient  to 
enable  him  to  hold  the  avails  of  the  same  as  against  the  attaching 
creditor.^ 

Not  only  will  courts  protect  equitable  assignees,  but  they  will 
afford  remedy  against  a  party  who,  having  notice  of  an  assign- 
ment of  the  debt,  yet  subjects  the  debtor,  through  garnishment, 
in  a  suit  against  the  assignor,  to  the  payment  of  a  debt.     In  such 

1  2  Story's  Equity,  §  1039,  1040.  Killenberg,    82    Ibid.   295 ;    Whitten    v. 

2  Providence  County  Bank  v.  Benson,  Little,  Georgia  Decisions,  Part  II.  99 ; 
24  Pick.  204.  See  Green  v.  Gillett,  5  Forepaugh  v.  Appold,  17  B.  Monroe,  625 ; 
Day,  485 ;  Lamkin  v.  Phillips,  9  Porter,  Patten  v.  Wilson,  34  Penn.  State,  299 ; 
98 ;  Hodson  v.  McConnell,  12  Illinois,  Insurance  Co.  of  Penna.  v.  Phoenix  Ins. 
170;  Galena  &  Chicago  U.  R.  K.  Co.  v.  Co.,  71  Ibid.  31 ;  Burrows  v.  Glover,  106 
Menzies,  26  Ibid.  121;  Carr  r.  Waugh,  Mass.  324;  Norton  v.  Piscataqua  Ins. 
28  Ibid.  418;  Cairo  &  St.  L.  R.  R.  Co.  v.  Co.,  Ill  Ibid.  532. 

[520] 


CHAP.  XXXI.]       BY   AN   ASSIGNMENT   OF   THE  DEBT.  §  606 

a  case  the  Supreme  Court  of  Tennessee  sustained  a  bill  in  equity 
by  the  assignee  against  the  attaching  plaintiff,  and  decreed  the 
payment  by  him  to  the  assignee  of  the  money  recovered  through 
the  garnishment.! 

§  605.  As  a  general  rule,  personal*  property  has,  in  contempla- 
tion of  law,  no  locality  or  situs,  but  is  deemed  to  follow  the 
person  of  the  owner.  Hence  it  results,  that  a  voluntary  transfer 
or  alienation  is  governed  by  the  law  of  the  place  of  his  domicile. 
It  is  also  a  general  principle,  sanctioned  and  acted  on  in  all 
civilized  countries,  that  the  laws  of  one  country  will,  by  what  is 
termed  the  comity  of  nations,  be  recognized  and  executed  in  an- 
other, where  the  rights  of  individuals  are  concerned.  Therefore, 
the  law  of  the  place  where  a  personal  contract  is  made,  is  to  gov- 
ern in  deciding  upon  its  validity  or  invalidity  ;  and  a  conveyance 
of  personal  property  which  is  valid  by  that  law,  is  equally 
effectual  elsewhere.  These  principles  apply  to  debts  and  other 
choses  in  action,  as  well  as  to  any  other  species  of  personal  prop- 
erty. While  the  rule  that  the  law  of  one  nation  will  be  carried 
into  effect  in  the  territories  of  another,  is  subject  to  some  excep- 
tions, yet  as  a  general  rule  it  is  established,  and  has  an  applica- 
tion to  the  subject  now  under  discussion,  in  connection  with  an 
assignment  of  a  debt  in  one  State,  in  such  a  manner  as  to  be  ef- 
fectual by  the  laws  of  that  State,  but  which  is  wanting  in  some 
particular  to  make  it  so  in  another  State,  where  the  debtor 
resides.  In  such  case  the  assignment  will  be  sustained  as  against 
an  attaching  creditor,  residing  in  the  State  where  the  assignment 
was  made  ;  ^  and  also  against  one  residing  in  the  State  where  the 
debt,  or  chose  in  action,  is.^ 

§  606.  In  order,  however,  that  the  rights  of  the  assignee 
should  be  fully  protected,  it  is  important  that  he  immediately 
notify  the  debtor  of  the  assignment.  Though  the  assignment,  as 
between  the  parties  to  it.  is  complete  and  effectual  from  the  mo- 
ment it  is  made,  and  the  assignor,  if  he  afterward  receive  pay- 

1  Haynes  v.  Gates,  2  Head,  598.  wright,   10  Ibid.   19 ;  Russell  v.   Tunno, 

-  Van  Buskirk  v.  Hartford  Fire  Ins.  11  Ricliardson,  303. 
Co.,  14  Conn.  583 ;  Burlock  v.  Taylor,  IG  -^  Houston  v.  Nowland,  7  Gill  &  John- 
Pick.  335  ;  Whipple  v.  Thayer,  Ibid.  25;  son,  480  ;  Wilson  v.  Carson,  12  Maryland, 
Daniels  v.  Willard,  Ibid.  36;  Martin  v.  54;    Mowrey   v.   Crocker,   6   Wisconsin, 
Potter,  11  Gray,  37  ;  Noble  v.  Smith,  6  826. 
llhode   Island,  446 ;    Northara   v.   Cart- 

[5211 


§  GOT  garnishee's    liability   as   affected       [chap.  XXXI. 

ment  of  the  debt,  will  be  obliged  to  pay  the  amount  to  the 
assignee,  yet  the  debtor  is  under  no  obligation  to  pay  the 
assignee  until  he  receive  notice  of  the  assignment.  After  that, 
a  payment  to  the  assignor  will  be  at  the  debtor's  peril. 

§  607.  The  assignment  of  a  debt  evidenced  by  bond,  bill,  or 
note  is  complete  by  the  assignment  of  the  bond,  bill,  or  note, 
without  notice  to  the  debtor ;  but  as  to  choses  in  action  not  so 
evidenced,  such,  for  example,  as  book  accounts,  or  debts  due  by 
judgment,  in  order  to  a  valid  assignment  of  them  there  must  be 
notice  to  the  debtor.  If,  therefore,  one  indebted  in  such  form  be 
summoned  as  garnishee  of  his  creditor,  and  have  received  no  no- 
tice of  an  assignment  of  his  debt,  a  judgment  rendered  against 
him  as  garnishee  will  protect  him  from  subsequent  liability  to  an 
assignee.^  If  he  have  received  information  of  an  assignment,  it 
is  his  duty,  in  answering,  to  state  that  fact,  so  as  to  guard  the 
rights  of  the  assignee  ;  but  more  especially  his  own :  for  if  he 
fail  to  do  so,  and  judgment  go  against  him  as  a  debtor  of  the  as- 
signor, it  will  afford  him  no  protection  against  a  suit  by,  and  a 
second  payment  to,  the  assignee.^  The  particular  shape  in  which 
this  information  may  have  been  received  is  of  no  consequence, 
provided  it  be  shown  to  have  been  derived  from  the  assignee  or 
his  agent.^  And  it  is  no  part  of  the  garnishee's  duty  (except, 
perhaps,  in  those  New  England  States  where  facts  stated  in  the 
garnishee's  answer  are  regarded,  only  so  far  as  he  may  declare 
his  belief  of  their  truth),  to  ascertain  the  truth  or  falsity  of  the 
information,  before  he  determines  whether  he  will  state  it  in  his 
answer.  True  or  false,  it  should  be  stated  in  every  case,  whether 
the  answer  is  in  itself  conclusive,  or  may  be  controverted  and 
disproved.  For  if  the  answer  be  conclusive,  and  the  garnishee 
fails  to  state  the  information  he  has  received,  because  he  may  not 

1  Tudor  17.  Perkins,  3  Day,  364 ;  Rich-  v.   Washington   Ins.   Co.,   1   Iowa,  404; 

ards  V.  Griggs,  16  Missouri,  416  ;  Clod-  Large  v.  Moore,  17  Ibid.  258 ;  Prescott  v. 

felter  v.  Cox,  1  Sneed,  330;  McCoid  v.  Hull,  17  Johns.  284  ;  Kimbrough  v.  Davis, 

Beatty,  12  Iowa,  299 ;  Dodd  v.  Brott,  1  84  Alabama,  583 ;  Page  v.  Thompson,  43 

Minnesota,  270.  New  Hanip.  373. 

-  Nugent  v.  Opdyke,  9  Robinson  (La.),  ^  Bank   of    St.    Mary   v.   Morton,    12 

453;  Crayton  v.  Clark,  11  Alabama,  787;  Robinson  (La.),  409.    In  Vermont,  it  was 

Colvin  V.  Rich,  3  Porter,  175;  Lamkin  held,  that  the  fact  that  the  information 

V.  Phillips,  9  Ibid.  98 ;  Foster  v.  Wliite,  came  to  the  garnishee  on  a  Sunday  did 

Ibid.  221 ;  Fowler  v.  Williamson,  52  Ibid,  not  make  it  less  effective,  than  if  it  had 

16 ;    Pitts    V.   Mower,    18    Maine,    361 ;  come    on    any    other    day.      Crozier    v. 

Bunker  i-.  Gilmore,  40  Ibid.  88 ;  Walters  Shants,  43  Vermont,  478. 
[522] 


CHAP.  XXXI.]       BY   AN   ASSIGNMENT    OF   THE   DEBT.  §  609 

believe  it  to  be  true,  he  assumes  all  the  responsibility  of  the  cor- 
rectness of  his  belief,  not  only  as  to  the  facts  within  his  knowl- 
edge, but  as  to  other  facts,  of  the  existence  of  which  he  may  be 
ignorant,  and  which  might  show  his  information  to  be  true.  And 
if  the  answer  be  not  in  itself  conclusive,  but  may  be  controverted 
and  disproved,  he  should  not  prejudge  the  case,  and  decide  that 
the  information  is  untrue  ;  but  should  leave  the  plaintiff  to  deny, 
and  the  court  to  adjudicate  its  truth.^ 

§  607  a.  The  obligation  of  the  garnishee  to  state  in  his  answer 
the  fact  of  his  having  received  information  of  an  assignment  of 
the  debt  is  not  dispensed  with  by  the  fact  that  the  assignee  knew 
of  the  garnishment,  and  might  have  intervened  and  asserted  his 
right  to  the  money .^ 

§  608.  An  assignment  of  a  debt  will  protect  the  rights  of  the 
assignee  from  a  subsequent  attachment  against  the  assignor, 
though  no  notice  may  have  been  given  to  the  debtor  before  the 
attachment,  if  it  be  given  in  time  to  enable  him  to  take  advan- 
tage of  it  before  judgment  against  him  as  garnishee.'^  And  it  is 
his  duty  at  any  time  before  such  judgment,  to  make  such  notice 
known  to  the  court ;  failing  in  which,  the  judgment  will  avail 
him  nothing  as  a  defence  against  an  action  by  an  assignee  of  the 
debt.4 

§  609.  An  assignment  of  a  debt  is  usually  made  in  writing,  but 
this  formality  is  not  necessary  where  the  debt  is  evidenced  by  a 
writing ;  a  delivery  of  which  to  the  assignee,  for  a  valuable  con- 
sideration, will  operate  an  assignment,  so  far  as  to  enable  him  to 
maintain  an  action  upon  it  in  the  name  of  the  assignor.^     Wher- 

1  Foster  v.  Walker,  2  Alabama,  177  ;  held,  that  an  attachment  of  a  debt,  made 
Wicks  V.  Branch  Bank,  12  Ibid.  594.  before  notice  of  its  assignment,  will  pre- 

-  Large  v.  Moore,  17  Iowa,  258.  vail  against  the  assignment,  though  no- 

2  Dix  V.  Cobb,  4  Mass.  508 ;  Stevens  tice  be  given  to  the  debtor  before  judg- 
V.  Stevens,  1  Ashmead,  190 ;  Pellnian  v.  ment  against  him  as  garnishee.  Judah 
Hart,  1  Penn.  State,  263  ;  Crayton  v.  v.  Judd,  5  Day,  534  ;  Bishop  v.  Holcombe, 
Clark,  11  Alabama,  787;  Smith  v.  Ster-  10  Conn.  444;  Van  Buskirk  v.  Hartford 
ritt,  24  Missouri,  260 ;  Walters  v.  Wash-  F.  I.  Co.,  14  Ibid.  141 ;  Ward  v.  Morri- 
ington   Ins.   Co.,   1   Iowa,  404;  Muir  v.  son,  25  Vermont,  593. 

Schcnck,  3   Hill  (N.  Y.),  228;  Northam  4  Crayton  v.  Clark,  11  Alabama,  787. 

V.  Cartwright,  10  Rhode  Island,  19.    That  ^  King   v.   Murphy,    1    Stewart,   228 ; 

the  doctrine  stated  in  the  text  is  correct,  Bayley  on  Bills,  2d  Am.  Ed.  102  ;  Norton 

cannot,  I  think,  be  reasonably  doubted  ;  v.  Piscataqua  Ins.  Co.,  Ill  Mass.  532. 
but  in  Connecticut  and  Vermont,  it   is 

[523] 


§  610  GAENISHEE'S   liability   as   affected       [chap.  XXXI. 

ever,  therefore,  a  writing  given  by  a  garnishee  to  the  defendant, 
has  been  bond  fide  transferred  by  delivery  to  a  third  person,  the 
garnishee  cannot  be  charged.  Thus,  where  the  evidence  of  the 
garnishee's  indebtedness  consisted  of  a  certificate  of  a  certain 
amount  of  lumber  cut  for  him  by  the  defendant,  with  a  statement 
of  what  was  to  be  paid  for  it,  attested  by  third  persons  ;  and 
before  the  garnishment  this  certificate  was  assigned  by  delivery ; 
the  court  held  the  assignment  good,  and  discharged  the  gar- 
nishee.^  So,  where  a  lessor  delivered  to  his  creditor  a  lease,  on 
which  rent  was  due,  to  enable  him  to.  receive  the  same  in  part 
payment  of  the  lessor's  debt  to  him,  and  the  lessee  knew  of  the 
delivery  for  that  purpose,  and  agreed  to  account  to  the  creditor 
for  the  rent  due  ;  it  was  held  a  good  equitable  assignment  of  the 
rent  as  against  an  attaching  creditor  of  the  lessor.^ 

§  610.  It  is,  however,  impracticable  thus  to  transfer  by  delivery 
a  book  account  or  other  debt,  not  evidenced  by  writing.  As  a 
symbolical  delivery  of  personal  property,  so  situated  that  an  ac- 
tual delivery  of  it  could  not  be  made,  has  been  regarded  as  sufl&- 
cieut,  so  the  assignee  of  a  judgment,  or  of  a  book  debt,  may, 
upon  the  same  principle,  be  enabled  to  establish  his  rights  with- 
out proof  of  an  actual  delivery.  For  a  delivery  of  a  transcript 
of  them  would  not  prove  a  delivery  of  the  debt  or  judgment.  It 
would  only  prove  a  delivery  of  something  indicative  of  their  ex- 
istence and  of  the  intention  of  the  parties.  Other  evidence, 
showing  that  the  transfer  had  been  completed,  would  be  suffi- 
cient.3  In  all  such  cases  the  assignment  should,  for  greater  cer- 
tainty, be  written ;  though,  as  we  shall  presently  see,*  a  verbal 
assignment,  if  assented  to  by  the  debtor,  will  suffice. 

An  assignment  of  a  chose  in  action,  or  of  a  fund,  need  not  be 
by  any  particular  form  of  words,  or  particular  form  of  instru- 
ment. Any  binding  appropriation  of  it  to  a  particular  use,  by 
any  writing  whatever,  is  an  assignment,  or  what  is  the  same,  a 
transfer  of  the  ownership.  Thus,  a  power  of  attorney  to  collect 
moneys  and  pay  them  over  to  certain  named  parties,  was  held, 
as  soon  as  the  moneys  were  collected,  to  be  in  effect  an  assign- 
ment.^    So,  a  power  of   attorney,  irrevocable,  authorizing  the 

1  Littlefield  v.  Smith,  17  Maine,  327  ;  »  Porter  v.  Bullard,  26  Maine,  448. 
Hardy  v.  Colby,  42  Ibid.  381 ;  Byars  v.  *  Post,  §  614. 

Griffin,  31  Mississippi,  603.  ^  Watson  v.  Bagaley,  12  Penn.  State, 

2  Dennis  v.  Twichell,  10  Metcalf,  180.     164. 

[524] 


CHAP.  XXXI.]      BY  AN   ASSIGNMENT   OF   THE   DEBT.  §  611 

attorney  to  collect  a  sum  of  money,  to  his  own  use,  is  a  con- 
structive assignment  of  the  money  to  him.i  So,  a  power  of  at- 
torney to  receive  all  the  money  due  from  A.  to  the  constituent, 
and  to  give  a  discharge  therefor  in  the  constituent's  name,  with 
a  clause  stating  that  this  "  is  an  assignment  of  the  same,"  con- 
stitutes an  assignment  of  the  debt  to  the  attorney,  though  the 
power  is  not  in  terms  irrevocable,  and  does  not  expressly  author- 
ize the  attorney  to  receive  the  money  to  his  own  use.^  So,  where 
a  garnishee  disclosed  indebtedness  to  the  defendant,  but  stated 
that  the  defendant  had  drawn  an  order  on  him  to  pay  the  balance 
of  his  account  to  a  third  person  ;  and  it  was  objected  that  this 
was  no  assignment,  because  it  did  not  purport  to  be  for  value 
received,  and  because  it  did  not  appear  but  that  the  drawee  named 
in  the  order  was  the  servant  of  the  defendant,  to  receive  the 
money  for  the  defendant's  use  ;  it  was  held,  that  there  was  a 
prima  facie  assignment,  and  that  the  words  value  received  were 
not  necessary .3  So,  where  A.  was  indebted  to  B.  on  a  book  ac- 
count, and  B.  drew  out  a  bill  of  the  items,  and  wrote  at  the  bot- 
tom a  request  to  A.  to  pay  the  amount  to  C. ;  and  notice  of  the 
assignment  was  given  to  A.  ;  and  afterwards  A.  was  garnished  in 
a  suit  against  B.,  and  was  charged  as  garnishee  and  paid  the 
money ;  and  suit  was  then  brought  in  B.'s  name,  for  the  use  of 
C,  to  recover  the  money;  it  was  held,  that  the  order  being 
drawn  for  the  whole  amount  due,  was  an  assignment  of  the 
debt,  and  that  A.  was  bound  to  know  that  an  assignment  was 
intended.^ 

§  611.  It  is  not,  however,  every  order  which  may  be  drawn  on 
a  party  having  moneys  of,  or  indebted  to,  the  drawer,  which  will 
operate  an  assignment  of  the  money  or  debt.  A  bill  of  ex- 
change, for  instance,  is  not  an  assignment  of  the  fund  on  which 
it  is  drawn,  or  any  part  thereof,  until  accepted  by  the  drawee.^ 
If,  however,  an  order  be  drawn  for  the  ivhole  of  a  designated 
fund  in  the  hands  of  a  drawee,  it  is  an  assignment,  whether  ac- 

1  Gerrish  v.  Sweetser,  4  Pick.  374.  277  ;  Cowperthwaite  v.  Sheffield,  1  Sand- 

2  Weed  V.  Jewett,  2  Metcalf,  608.   See  ford   Sup.    Ct.   416  ;   3   Comstock,   243 
People  V.  Tioga  C.  P.,  19  Wendell,  73.  Sands  v.   Matthews,   27   Alabama,  399 

3  Adams  v.  Robinson,  1  Pick.  461.  Luff  i-.  Pope,  5  Hill  (N.  Y.),  413;  7  Ibid? 
See  Johnson  v.  Thayer,  17  Maine,  401.  577  ;  Winter  v.  IJrury,    1    Selden,  525 

*  Bobbins   v.   Bacon,    3   Maine,   346;     Kimball    v.    Donald,   20   Missouri,    577 
Conway  v.  Cutting,  51  New  Hamp.  407.        Wilson  v.  Carson,  12  Jlaryland,  54. 
5  Mandeville  v.    Welch,   5   Wheaton, 

[525] 


§  612  garnishee's    liability   as    affected       [chap.  XXXI. 

cepted  by  the  latter  or  not ;  *  but  it  is  well  settled  that  where  an 
order  is  drawn  on  either  a  general  or  particular  fund,  for  a  'part 
only^  it  does  not  amount  to  an  assignment  of  that  part,  unless  the 
drawee  consent  to  the  appropriation  by  an  acceptance  of  the 
draft ;  or  an  obligation  to  accept  may  be  fairly  implied  from 
the  custom  of  trade,  or  the  course  of  business  between  the  par- 
ties, as  a  part  of  their  contract.^  Therefore,  where  A.,  under  an 
attachment  against  B.,  summoned  a  bank  as  garnishee,  which,  at 
the  time,  had  money  of  B.  on  deposit,  and  after  the  garnishment, 
A.,  B.,  and  the  cashier  of  the  bank  being  together  at  a  place  dis- 
tant from  the  bank,  B.  drew  a  check  on  the  bank  for  a  certain 
sum,  and  delivered  it  to  A.,  in  pajmient  of  his  debt  to  A.,  and 
A.  receipted  for  it  and  signed  an  order  to  dismiss  his  attachment 
upon  the  amount  of  the  check  being  transferred  to  his  credit  on 
the  books  of  the  bank,  and  delivered  the  check  to  the  cashier  for 
the  purpose  of  having  the  transfer  made  when  he  should  return 
to  the  bank ;  and,  before  his  return,  other  creditors  of  B.  had 
garnished  the  bank ;  but,  notwithstanding,  the  cashier  charged 
the  check  to  B.'s  account  and  carried  the  same  amount  to  the 
credit  of  A.  ;  it  was  held,  that  the  check  was  no  assignment  of 
any  part  of  B.'s  money  in  the  bank  until  it  was  presented  and 
paid,  and  that  the  subsequent  attachers  were  entitled  to  the 
money,  notwithstanding  the  entries  made  on  the  books  of  the 
bank.^ 

§  612.  It  is  not  necessary  that  the  debt  assigned  should  be  due 
at  the  time  of  the  assignment,  in  order  to  protect  the  rights  of 
the  assignee  from  an  attachment  against  the  assignor.  A  debt 
afterwards  to  accrue  may  be  effectually  assigned.  Thus,  where 
A.  was  employed  as  a  laborer  by  B.,  and,  being  indebted  to  C, 
executed  a  power  of  attorney  authorizing  C.  to  receive  and  re- 
ceipt for  all  sums  of  money  then  due  or  thereafter  to  become 
due  to  him,  and  stating  that  the  power  was  an  assignment  of  the 
money ;  and  B.  agreed  to  pay  A.'s  wages  to  C. ;  it  was  decided 
that  the  assignment  was  valid,  and  that  B.  could  not  be  held  as 


1  McMenomy  v.  Ferrers,  3  Johnson 
71;  Miller  v.  Hubbard,  4  Cranch  C.  C 
451 ;  Macomber  v.  Doane,  2  Allen,  5-41 
lOngman  v.  Perkins,  105  Mass.  Ill 
Garland  v.   Harrington,  51  New  Hamp 


98;  ManJeville  v.  Welch,  5  Wheaton, 
277  ;  Cowperthwaite  v.  Sheffield,  1  Sand- 
ford  Sup.  Ct.  416;  3  Comstock,  243; 
Gibson  v.  Cooke,  20  Pick.  15 ;  Tripp  v. 
Brownell,  12  Gushing,  376. 


409.  ^  BuUard    v.    Randall,   1    Gray,   605. 

^  Poydras  v.  Delaware,  13  Louisiana,     See  Duncan  v.  Berlin,  60  New  York,  151. 
[526]  . 


CHAP.  XXXI.]      BY    AN    ASSIGNMENT    OF    THE    DEBT.  §  614 

garnishee  of  A.i  So,  where  A.  was  employed  as  an  assessor  of 
the  city  of  Mobile,  and  before  the  service  required  of  him  in  that 
capacity  had  been  performed,  he  drew  an  order  on  the  corpora- 
tion in  favor  of  B.  for  the  agreed  compensation  for  his  services, 
which  was  accepted  by  the  mayor  of  the  city  ;  it  was  decided 
that  the  assignment  of  the  debt  was  complete,  and  that  the  cor- 
poration could  not  be  held  as  garnishee  of  A.^ 

§  613.  But  while  it  is  true  that  a  debt  to  become  afterwards 
due  may  be  assigned,  it  is  necessary  that,  at  the  date  of  the 
assignment,  the  contract  out  of  which  the  debt  is  to  grow  should 
have  some  existence.  A  mere  possibility  of  future  indebtedness, 
without  any  subsisting  engagement  upon  which  it  shall  accrue, 
cannot  be  assigned.  The  debt  may  be  conditional,  uncertain  as 
to  amount,  or  contingent ;  but  to  be  the  subject  of  an  assignment, 
there  must  be  an  actual  or  possible  debt,  due  or  to  become  due. 
Therefore  where  A.  executed  a  paper  in  July,  purporting  to 
transfer  to  B.  "all  claims  and  demands  which  A.  now  has  or 
which  he  may  have  against  C.  on  the  first  day  of  January  next, 
for  all  sums  of  money  due  and  to  become  due  to  A.  for  services 
in  la^ang  common  sewers  ;  "  with  a  power  of  attorney  irrevocable 
to  receive  the  same ;  and  it  was  altogether  uncertain  whether  C. 
would  afterwards  employ  A.  at  all;  and  the  existence  of  any 
debt  from  him  to  A.  after  the  date  of  the  assignment  depended 
wholly  on  A.'s  being  so  employed  ;  it  was  decided  that  the  trans- 
fer to  B.,  as  against  a  subsequent  attaching  creditor,  carried  only 
what  was  due  at  its  date,  and  did  not  reach  any  thing  becoming 
due  to  A.  afterwards,  from  subsequent  employment.^ 

§  614.  When  a  debt  is  not  evidenced  by  a  writing,  it  may  be 
assigned  verbally,  if  the  debtor  assent.  Where  such  assent  is 
given,  the  assignment  is  complete,  and  the  debtor  is  bound  to 
pay  to  the  assignee,  and  consequently  cannot  be  charged  as  gar- 
nishee of  the  assignor.  Thus  where  the  answer  of  a  garnishee 
admitted   that   he    had   been   indebted    to    the   defendant,    but 

1  Weed   V.  Jewett,    2    Metcalf ,    608.  4  Mass.  258 ;  Jolinson  v.  Pace,  78  Illinois, 

See  Emery  v.  Lawrence,  8  Gushing,  151 ;  143. 

Hartley  v.  Tapley,  2  Gray,  505 ;  Taylor  ■^  Payne   v.  Mobile,  4   Alabama,  333. 

V.  Lynch,  5  Ibid.  4U  ;  Lannan  v.  Smith,  7  See  Tucker  v.  JMarsteller,  1  Crunch  C.  C. 

Ibid.   150;  Wallace  v.  Walter  Haywood  2-54;    Garland    v.   Harrington,   51    New 

C.  Co.,  16  Ibid.  20'J  ;  Caliill  v.   Bigelow,  Hamp.  40!). 

18  Piclc.  360;  Van  Staphorsl  v.  Pearce,  '^  Mulhall  v.  Quinn,  1  Gray,  105. 

[527] 


II 


§  615  garnishee's   liability   as    affected       [chap.  XXXI. 

stated  that  before  he  was  garnished  there  was  a  verbal  agreement 
between  him  and  the  defendant  and  a  creditor  of  the  defendant, 
that  the  debt  should  be  paid  to  the  creditor ;  the  answer  was 
held  to  be  evidence  in  the  garnishee's  favor  to  show  that  he  was 
not  indebted  to  the  defendant.  This  was  in  effect  giving  to  the 
arrangement  the  character  and  force  of  an  equitable  assignment 
of  the  debt;  otherwise  the  answer  was  inadmissible  as  evidence 
to  the  purport  stated.^  So,  where  A.  &  B.  were  partners,  and 
upon  a  dissolution  of  the  firm,  A.  was  found  indebted  to  B.,  and 
B.  requested  him  to  pay  the  amount  to  C,  his  creditor,  who  was 
present,  and  A.  replied  that  it  was  immaterial  to  him  to  whom  he 
paid  the  money ;  it  was  held  to  be  a  transfer  of  the  debt,  so  as 
to  prevent  A.  from  being  charged  as  garnishee  of  B.^  So,  if  by 
agreement  between  both  the  partners  and  a  debtor  of  the  firm, 
the  debt  of  the  latter  is  to  be  paid  to  one  of  the  partners  after  a 
dissolution  of  the  firm,  the  debtor  may  be  held  as  garnishee  of 
him  to  whom  it  is  so  to  be  paid.^ 

§  615.  In  any  case  of  the  transfer  of  evidences  of  debt,  where 
the  assignee  undertakes  to  assert  title  through  such  transfer,  the 
good  faith  of  the  transaction  may,  of  course,  be  the  subject  of 
inquiry,  and  must  be  shown,  if  sufficient  evidence  be  presented 
to  cast  suspicion  upon  it.  The  assignee  will,  in  such  case,  be 
entitled,  in  the  first  instance,  to  the  benefit  of  all  presumptions 
in  his  favor,  but  those  presumptions  may  be  overthrown  by  proof, 
as  in  any  other  transaction.  If  the  assignment  be  direct  from 
the  debtor  to  him,  and  made  without  consideration,  or  with  a 
fraudulent  intent,  known  to  the  assignee,  he  cannot  avail  himself 
of  it  to  defeat  an  attachment.  And  the  infirmity  of  the  transac- 
tion will  affect  the  title  of  a  subsequent  purchaser,  having  knowl- 
edge of  the  fraudulent  character  of  the  original  assignment.  But 
no  such  result  will  ensue,  where  the  subsequent  purchaser  has 
not  such  knowledge.  He  may  know  that  the  debtor  transferred 
the  paper  without  consideration,  but  that  will  not  prevent  his 
acquiring,  for  value,  a  complete  title  ;  for  such  transfer  is  not 

1  Black  V.  Paul,  10  Missouri,  103.  See  Hutching  v.  Watts,  35  Ibid.  860;  Ponton 
Curie  V.  St.  Louis  Perpetual  Ins.  Co.,  12  v.  Griffin,  72  North  Carolina,  362 ;  Put- 
Ibid.  578 ;  Porter  v.  Bullard,  26  Maine,  ney  v.  Farnham,  27  Wisconsin,  187 ; 
448;  Rudd  v.  Paine,  2  Cranch  C.  C.  9 ;  Balliet  v.  Scott,  32  Ibid.  174. 
Newby  v.  Hill,  2  Metcalfe  (Ky.),  530;  -  Lovely  w.  Caldwell,  4  Alabama,  684. 
Noyes  v.  Brown,  33  Vermont,  431;  3  jvjarliu  y.  Kirksey,  23  Georgia,  164. 
[528] 


CHAP.  XXXI.]      BY   AN   ASSIGNMENT   OF   THE   DEBT. 


615  a 


necessarily  fraudulent  iper  se  ;  and  the  purchaser  is  not  bound  to 
inquire  into  the  solvency  of  the  assignor,  or  into  the  circum- 
stances which  might  give  a  fraudulent  aspect  to  the  transaction. 
Thus,  where  A.,  who  was  insolvent,  transferred  to  B.,  as  a  gift, 
a  check  on  a  bank,  and  B.,  for  value,  sold  the  check  to  C,  who 
knew  that  B.'s  title  was  that  of  a  donee,  without  consideration, 
but  had  no  knowledge  that  the  gift  was  in  fraud  of  A.'s  creditors ; 
it  was  held,  that  C.'s  title  was  valid  and  effectual  against  an  at- 
tachment, under  which  the  drawer  of  the  check  was  summoned 
as  garnishee  of  A.^ 

§  615  a.  All  the  views  expressed  in  this  chapter  will  have  been 
seen  to  refer  to  cases  of  assignments  of  debts  made  before  the 
garnishment  of  the  debtor.  No  assignment  made  after  that  event 
can  have  any  effect  to  deprive  the  attachment  plaintiff  of  his 
recourse  against  the  garnishee, ^ 


1  Fulweiler  v.  Hughes,  17  Penn.  State, 
440.  From  the  opinion  of  the  court,  we 
present  the  following  extract :  "  From 
all  other  property  commercial  paper  is 
distinguished  by  the  fact  that  it  carries 
on  its  face  all  the  evidences  of  title  which 
persons  dealing  in  it  are  charged  with 
notice  of.  Hence  a  party  may,  with  per- 
fect safety,  purchase  a  negotiable  instru- 
ment, if  it  is  all  fair  upon  its  face,  unless 
he  has  actual  notice  of  a  defect  in  the 
holder's  title,  or  it  is  offered  under  suspi- 
cious circumstances.  Hence,  also,  notice 
that  the  instrument  is  a  mere  accommo- 
dation or  gift,  does  not  prevent  a  pur- 
chaser for  value  from  taking  a  good  title  ; 
for  the  giving  of  the  paper  is  a  declara- 
tion of  intention  that  it  may  be  put  into 
free  circulation  for  the  benefit  of  the 
payee ;  and  therefore  one  may,  with  a 
good  conscience,  buy  it  and  claim  upon 
it,  even  though  he  knows  its  character. 
A  contrary  doctrine  would  involve  the 
duty  on  the  part  of  the  accommodation 
payee  to  inform  the  purchaser  of  the 
character  of  the  instrument,  and  this 
would  then  defeat  the  very  object  for 
which  it  was  given. 

"  From  these  remarks  it  is  apparent 
that  a  donee  of  negotiable  paper  does  not 
stand  upon  the  same  rule  as  a  purchaser 


from  the  donee  with  knowledge  of  the 
gift;  for  the  latter  may  recover,  though 
the  former  could  not  have  done  so. 
Notice  that  it  is  a  gift  is  not  notice  that 
payment  is  not  intended,  and  one  may 
purchase  bond  fide  under  the  former  no- 
tice, when  he  could  not  under  the  latter. 
The  donee  has  a  good  title,  though  a 
revocable  one,  and  he  can  pass  a  good 
title  to  any  one  not  notified  of  the  revo- 
cation. 

"  These  principles  are  plain,  and  rule 
the  question  under  consideration.  The 
check  was  a  gift  to  B.,  and  by  the  gift 
he  acquired  a  good  title  as  against  the 
donor,  but  revocable  by  the  donor's  cred- 
itors. The  purchaser  knew  of  the  gift, 
but  he  did  not  know  of  the  revocation, 
or  of  the  facts  which  amounted  to  a  revo- 
cation, for  he  knew  nothing  of  the  donor's 
insolvency,  and  the  donee  was  also  igno- 
rant of  it.  One  could  sell  and  the  other 
could  purchase  the  check  in  good  faith  ; 
and  the  subsequent  notice  of  insolvency 
and  reclamation  by  the  creditors  does 
not  affect  the  purchaser's  conscience,  or 
make  it  mala  fides  in  him  to  hold  on  to 
what  he  has  honestly  and  innocently 
purchased." 


34 


Stevens  v.  Pugh,  12  Iowa,  430. 
[529] 


S  018  LEGAL   PKOCEEDINGS  [CHAP.  XXXII. 


CHAPTER     XXXII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  THE  COMMENCE- 
MENT, PENDENCY,  AND  COMPLETION  OF  LEGAL  PROCEEDINGS 
AGAINST  HIM,  BY  THE  DEFENDANT,  FOR  THE  RECOVERY  OF 
THE   DEBT. 

§  616.  It  frequently  happens  that  when  a  garnishee  is  sum- 
moned, a  suit  is  pending  against  him  on  the  part  of  the  defendant, 
or  that  the  defendant  has  obtained  a  judgment  against  him  for 
the  debt  in  respect  of  which  he  is  garnished.  Numerous  cases 
of  this  description  have  received  adjudication,  and  the  decisions 
are  by  no  means  consentaneous.  We  will  consider,  I.  The  effect 
of  the  pendency  of  a  suit  by  the  defendant  against  the  garnishee  ; 
and,  II.  The  question  whether  a  judgment  debtor  can  be  held  as 
garnishee  of  the  judgment  plaintiff. 

§  617.  I.  Tlie  effect  of  the  Pendency  of  a  Suit  hy  the  Defendant 
against  the  Garnishee.  It  is  an  invariable  and  indispensable 
principle,  that  a  garnishee  shall  not  be  made  to  pay  his  debt 
twice.  Consequently,  when  he  is  in  such  a  situation  that,  if 
charged  as  garnishee,  he  cannot  defend  himself  against  a  second 
payment  to  his  creditor,  he  should  not  be  charged.  This  prin- 
ciple has  been  applied,  as  we  shall  presently  see,  to  cases  where 
legal  proceedings  were  pending  against  the  garnishee  on  behalf 
of  the  defendant. 

§  618.  A  case  is  reported  as  having  been  decided  in  Massachu- 
setts, in  1780,  taking  the  broad  ground  that  a  garnishee  cannot 
be  charged  on  account  of  a  debt,  for  the  recovery  of  which  an 
action,  previously  commenced  by  the  defendant,  is  pending  at  the 
time  of  the  garnishment.  This  was  under  the  old  provincial 
trustee  act  of  32  Geo.  2 ;  i  but  it  was  overruled  in  1828,  under 
the  then  existing  statute.^     In  New  Hampshire,  likewise,  the 

1  Gridley  v.  Ilarraden,  14  Mass.  496.  ^  Thorndike  v.  DeWolf,  6  Pick.  120. 

[530] 


CHAP.  XXXII.]    BY   DEFENDANT   AGAINST   GAKNISHEE.  §  619 

same  ground  was  at  one  time   assumed,^  but  afterwards  aban- 
doned.2 

§  619.  There  came  before  the  Supreme  Court  of  the  United 
States,  a  case  which  might  seem  to  favor  the  view  first  entertained 
in  Massachusetts  and  New  Hampshire,  but  it  is  essentially  different. 
A.  sued  B.  in  the  District  Court  of  the  United  States  for  Alabama. 
After  the  action  was  brought,  B.  was  summoned  as  garnishee  of  A., 
in  a  county  court  of  Alabama,  and  judgment  was  there  rendered 
against  him.  He  then  pleaded  the  judgment  in  bar  of  the  action 
pending  in  the  United  States  Court,  and  the  court,  on  demurrer, 
held  the  plea  bad.  The  Supreme  Court  on  this  point  say  r  "  The 
plea  shows  that  the  proceedings  on  the  attachment  were  instituted 
after  the  commencement  of  this  suit.  The  jurisdiction  of  the 
District  Court  of  the  United  States,  and  the  right  of  the  plaintiff 
to  prosecute  his  suit  in  that  court,  having  attached,  that  right 
could  not  be  arrested  or  taken  away  by  any  proceedings  in  an- 
other court.  This  would  produce  a  collision  in  the  jurisdiction  of 
courts,  that  would  extremely  embarrass  the  administration  of 
justice."  The  court,  however,  expressly  recognize  the  doctrine 
that  if  the  garnishment  had  taken  place  before  the  action  was 
brought,  it  would  have  been  sufficient  in  abatement,  or  bar,  as  the 
case  might  be.  They  say  :  "  If  the  attachment  had  been  con- 
ducted to  a  conclusion,  and  the  money  recovered  of  the  defendant 
before  the  commencement  of  the  present  suit,  there  can  be  no 
doubt  that  it  might  have  been  set  up  as  a  payment  upon  the  note 
in  question.  And  if  the  defendant  would  have  been  protected 
pro  tanto,  under  a  recovery  had  by  virtue  of  the  attachment,  and 
could  have  pleaded  such  recovery  in  bar,  the  same  principle  would 
support  a  plea  in  abatement,  of  an  attachment  pending  prior  to 
the  commencement  of  the  present  suit.  The  attachment  of  the 
debt,  in  such  case,  in  the  hands  of  the  defendant,  would  fix  it 
there  in  favor  of  the  attaching  creditor,  and  the  defendant  could 
not  afterwards  pay  it  over  to  the  plaintiff.  The  attaching  cred- 
itor would,  in  such  case,  acquire  a  lien  upon  the  debt,  binding 
upon  the  defendant,  and  which  the  courts  of  all  other  govern- 
ments, if  they  recognize  such  proceedings  at  all,  could  not  fail  to 
regard.     If  this  doctrine  be  well  founded,  the  priority  of  suit  will 

1  Burnham  v.  Folsom,  5  New  Ilamp.  See  Smith  v.  Durbridge,  2G  Louisiana 
568.  Annual,  531. 

Foster  v.   Dudley,    10  Foster,   463. 

[531] 


§  620  LEGAL   PROCEEDINGS  [CHAP.  XXXII. 

determine  tlio  right.  The  rule  must  be  reciprocal ;  and  where 
tlie  suit  in  one  court  is  commenced  prior  to  the  proceedings  under 
attachment  in  another  court,  such  proceedings  cannot  arrest  the 
suit;  and  the  maxim  qui  prior  est  tempore^  potior  est  jure,  must 
govern  the  case."  ^ 

The  difference  between  this  case  and  those  first  decided  in  New 
Hampshire  and  Massachusetts,  lies  in  the  two  proceedings  in 
Alabama  taking  place  in  different  jurisdictions ;  and  the  whole 
decision  of  the  Supreme  Court  of  the  United  States  was  based 
on  the  conflict  of  jurisdiction,  which  would  grow  out  of  a  practice 
such  as  that  passed  upon  by  that  tribunal. 

In  Massachusetts,  it  is  now  held,  that  the  liability  of  a  defend- 
ant in  a  suit  pending  in  that  State,  is  not  discharged  by  his  pay- 
ment of  a  judgment  rendered  against  him  in  another  State,  as 
garnishee  of  the  plaintiff,  in  a  proceeding  commenced  after  the 
institution  of  the  suit  in  Massachusetts,  where  the  garnishee  does 
not  make  known  the  existence  of  that  suit ;  ^  and  that  a  garnishee 
will  not  be  charged  in  Massachusetts  for  a  debt  upon  which  a  suit 
was  instituted  against  him  in  another  State,  before  the  commence- 
ment of  the  garnishment  proceeding,  and  to  which  he  has  ap- 
peared.2 

§  620.  In  Massachusetts,  the  liability  of  a  garnishee  where  an 
action  on  behalf  of  the  defendant  is  pending  against  him,  turns 
upon  the  state  of  the  pleadings  in  the  action  at  the  time  of  the 
garnishment.  If  the  pleadings  are  in  such  state  that  the  garnishee 
can  plead  the  garnishment  in  bar  of  the  action,  he  can  be  charged  ; 
otherwise  not."^  Hence,  in  the  first  reported  case  of  the  kind  in 
that  State,  where  the  garnishee  had  been  sued  by  the  defendant, 
and,  before  the  garnishment,  the  action  had  been  referred  by  rule 
of  court,  in  which  rule  it  was  agreed  that  judgment  should  be 
entered  up  according  to  the  report  of  the  referees,  and  execution 
issued  thereon  ;  it  was  determined  that  the  garnishee  could  not  be 
charged,  because  in  this  state  of  the  action  no  day  for  pleading 
remained  for  the  garnishee,  and  the  law  furnished  him  no  defence 
against  the  defendant's  demand  of  judgment.^     The  same  rule 

1  Wallace    v.   McConnell,   13   Peters,  2  Whipple  v.  Robbins,  97  Mass.  107. 

136.     See  Bingham  v.  Smith,  5  Alabama,  ^  American  Bank  v.  Rollins,  99  Mass. 

651;  Greenwood  v.   Rector,   Hempstead,  313. 

708;  Wood  v.  Lake,   13  Wisconsin,  84;  4  Thorndike  v.  DeWolf,  6  Pick.  120. 

Arthur  i;.  Batte,  42  Texas,  159.  ^  Howell  v.  Freeman,  3  Mass.  121. 

[532] 


CHAP.  XXXII.]    BY   DEFENDANT   AGAINST   GARNISHEE.  §  620 

was  enforced  in  a  case  of  similar  facts,  where  the  garnishment 
took  place  after  the  award  of  the  referees,  but  before  judgment 
rendered  thereon. ^ 

In  another  case,  where,  after  issue  joined,  the  defendant  was 
summoned  as  garnishee  of  the  plaintiff,  and  after  verdict  for  the 
plaintiff,  the  defendant  moved  in  arrest  of  judgment,  on  the 
ground  of  the  garnishment,  the  same  court  held,  that  the  motion 
could  not  prevail,  and  that  the  garnishment  was  void,  because 
made  after  issue  joined,  when  the  garnishee  could  not  defend 
himself  against  a  recovery  in  the  action,  by  the  trial  of  any  issue 
in  fact  or  in  law,  on  any  plea  which  he  had  opportunity  to  plead.^ 

Where,  however,  the  defendant  in  a  pending  action  was  gar- 
nished, and,  before  the  action  was  brought  to  a  judgment,  he  was 
charged  as  garnishee,  and  paid  the  amount  recovered  against  him 
as  such,  it  was  held  to  be  a  good  bar  to  the  action.^ 

And  where  the  garnishee  is,  at  the  time  of  the  garnishment, 
indebted  to  the  defendant,  a  payment  by  him  of  a  judgment  sub- 
sequently recovered,  will  not  discharge  him.  Thus,  where  A. 
was  summoned  as  garnishee  of  B.,  pending  a  suit  against 
him  by  B.,  and  it  was  agreed  between  A.  and  the  plaintiff  in 
attachment,  that  the  garnishment  proceedings  should  be  contin- 
ued until  the  suit  of  B.  against  A.  should  be  determined  ;  and 
B.  afterward  obtained  judgment  against  A.,  who  appealed  there- 
from, and  gave  bond  to  abide  the  decision  of  the  apjDellate  court ; 
and  A.  then  answered  as  garnishee,  denying  that  he  was  liable 
on  the  contract  on  which  B.  had  obtained  a  judgment,  and  refer- 
ring to  his  appeal  from  the  judgment ;  and,  at  a  subsequent  time 
further  answered,  that  he  had  settled  the  appeal,  by  paying  the 
amount  of  the  judgment  appealed  from  ;  it  was  held,  that  A. 
was  liable  as  garnishee  of  B.  The  court  fully  recognized  the 
principles  they  had  previously  laid  down,  in  regard  to  summon- 
ing a  person  as  garnishee  pending  an  action  against  him  ;  but 
held,  that  the  garnishee,  by  his  mistake  of  the  nature  of  his  de- 
fence against  B.'s  demand,  or  by  his  inattention,  had  placed  him- 
self beyond  the  protection  of  those  principles.* 

In  Maine,  the  mere  fact  of  issue  being  joined,  is  considered  to 
have  no  effect  in  exempting  the  garnishee  from  liability.^ 

1  McCaffrey  v.  Moore,  18  Pick.  492.  *  Locke  v.  Tippets,  7  Mass.  149. 

•i  Kidd  V.  Shepherd,  4  Mass.  238.  5  Smith  v.  Barker,  10  Maine,  458. 


3  Foster  v.  Jones,  15  Mass.  185. 


[533] 


II 


§  C)20  LEGAL    mOCEEDlNGS  [CHAr.  XXXII. 

In  Vermont  and  New  Ilampsliire,  on  the  other  hand,  the  courts 
seem  disposed  to  adopt  the  Massachusetts  rule,  so  far  as  to  dis- 
charge tlie  garnishee,  where  the  condition  of  the  action  agahist 
him  is  such  tliat  he  cannot  plead  the  garnishment  in  bar  thereof.^ 
Hence,  where  the  garnishee  disclosed  that  the  defendant  had 
commenced  a  suit  in  chancery  against  him,  which,  before  the  gar- 
nishment, had  been  set  down  for  trial,  and  between  the  time  of 
the  garnishment,  and  that  of  filing  the  garnishee's  answer,  had 
been  heard  b}-  the  chancellor,  and  continued  for  his  decision  ;  the 
court  decided  that  the  garnishee  could  not  be  charged,  because 
the  proceedings  in  the  chancery  court  could  not  be  arrested,  or 
its  decree  anticipated,  and  the  garnishee,  if  charged,  might  be 
compelled  to  pay  the  demand  a  second  time.^ 

In  Pennsylvania,  the  pendency  of  an  action  by  the  defendant 
against  the  garnishee,  at  the  time  of  the  garnishment,  will  not 
prevent  the  garnishee's  liability.  The  court  there,  acting  upon 
probably  the  first  case  in  this  country  in  which  this  question  was 
involved,  reject  the  English  doctrine,  that  a  debt  in  suit  cannot 
be  attached,  as  inapplicable  to  the  state  of  things  here.  The 
doctrine  in  England  grows  out  of  the  fact  that  garnishment  there 
is  the  offspring  of  special  and  local  custom,  and  takes  place  in 
inferior  courts  ;  and  the  courts  of  general  jurisdiction  will  not 
permit  suits  depending  before  them  to  be  affected  by  the  process 
of  inferior  tribunals  exercising  a  jurisdiction  of  the  kind  belong- 
ing to  the  courts  of  the  sheriff  and  lord  mayor  of  London.^  In 
Tennessee,  the  same  view  is  taken  as  in  Pennsylvania;*  and  so 
in  Alabama  and  Kansas,  where  the  suit  and  the  garnishment  are 
in  the  same  court  ;^  but  not  where  they  are  in  different  courts ; 
at  least  when  the  debt  is  controverted.*^ 


1  Trombly  v.  Clark,  13  Vermont,  118;  the  plaintiff  shall  cause  the  defendant  to 
Foster  v.  Dudley,  10  Foster,  463  ;  Thayer  be  released  from  the  garnishment. 

V.  Pratt,  47  New  Hamp.  470.  »  McCarty   v.   Enilen,  2  Dallas,  277  ; 

2  Wadsworth  v.  Clark,  14  Vermont,  2  Yeates,  190 ;  Crabb  v.  Jones,  2  Miles, 
139.  In  Spieer  v.  Spicer,  23  Vermont,  130;  Sweeny  v.  Allen,  1  Penn.  State, 
678,  it  was  held  that  when  a  defendant,  380. 

in  a  suit  pending,  is  summoned  as  gar-  *  Huff  w.  Mills,  7  Yerger,  42  ;  Thrasher 

nishee  of  the  plaintiff,  and  is  charged  for  v.  Buckingham,  40  Mississippi,  67  ;  Lieber 

the  full  amount  of  the  plaintiff's   claim  v.  St.  Louis  A.  &  M.  Assoc'n,  36  Missouri, 

against    him,   and   the  judgment  charg-  382. 

ing   him   remains  unsatisfied;  judgment  ^  Ilitt  r.  Lacy,  3  Alabama,  104;  Mc- 

should  be  rendered  for  the  plaintiff  for  Donald  v.  Carney,  8  Kansas,  20. 
the  amount  of  his  claim  ;  but  that  the  <>  Bingham  v.  Smith,  5  Alabama,  651. 

court  will  order  execution  stayed,  until 
[534] 


CHAP.  XXXII.]    BY   DEFENDANT   AGAINST   GARNISHEE.  §  622 

§  621.  We  may  state,  then,  as  the  result  of  these  decisions,  1. 
That  the  pendency,  in  the  same  court,  of  an  action  on  behalf  of 
the  defendant  against  the  garnishee,  will  not  preclude  the  gar- 
nishee's being  charged ;  2.  That  where  the  action  is  pending  in 
one  court  and  the  garnishment  in  another,  and  the  courts  are  of 
different  jurisdictions,  that  which  was  first  instituted  will  be  sus- 
tained ;  and,  3.  That  when  the  action  is  in  such  a  situation  that 
the  garnishee,  if  charged,  cannot  avail  himself  of  the  judgment 
in  attachment  as  a  bar  to  a  recovery  in  the  action,  he  cannot  be 
held  as  garnishee. 

§  622.  II.  Can  a  Judgment  Debtor  he  held  as  Garnishee  of  the 
Judgment  Creditor  ?  On  this  point  the  decisions  differ.  Where, 
as  in  New  Hampshire,  a  person  against  whom  suit  has  been 
brought  cannot  be  charged  as  garnishee  ;  and  where,  as  in  Mas- 
sachusetts and  Vermont,  the  garnishee  in  such  case  cannot  be 
made  liable,  if  the  pending  action  be  in  such  situation  that  the 
garnishment  cannot  be  pleaded  therein  ;  and  where  the  judgment 
is  in  one  court  and  the  garnishment  in  another  ;  it  might  be  ex- 
pected to  be  decided  that  the  judgment  debtor  could  not  be 
charged  as  garnishee  of  the  judgment  creditor. 

In  New  Hampshire  and  Vermont,  the  question  has  not  directly 
come  up,  though  in  the  latter  State  the  court,  on  one  occasion, 
used  language  which  might  be  construed  to  authorize  the  garnish- 
ment of  a  judgment  debtor.  They  say :  "  The  statute  makes  all 
the  goods,  chattels,  rights,  or  credits  of  the  defendant  in  the 
hands  of  the  trustee  liable  for  the  debts  of  the  defendant.  Hence, 
if  the  trustee  is  indebted  to  the  defendant,  he  is  liable  to  be  sum- 
moned as  trustee  without  regard  to  the  nature  of  the  indebted- 
ness, whether  by  record,  specialty,  or  simple  contract.  No 
exception  is  made  whether  a  suit  is  depending  in  favor  of  the 
defendant,  or  whether  payable  or  not."  ^ 

In  Massachusetts,  it  was  held,  that  one  against  whom  an  exe- 
cution on  a  judgment  was  in  the  hands  of  a  sheriff,  could  not  be 
charged  as  garnishee  of  the  plaintiff  therein ;  ^  and  tliat  a  judg- 
ment debtor,  against  whom  an  execution  might  issue,  could  not 
be  so  charged.-'^  Justice  Story,  in  a  case  which  came  before  the 
Circuit  Court  of  the  United  States  in  Rhode   Island,  held  the 

1  Tronibly  v.  Clark,  18  Vermont,  118.  3  Prescott  v.  Parker,  4  Mass.  170. 

2  Sharp  V.  Clark,  2  Mass.  'Jl. 

[535] 


§  623  LEGAL   PROCEEDINGS  [CHAP.  XXXII. 

same  ground  ,  ^  as  did  the  Supreme  Courts  of  New  Jersey,^  Ar- 
kansas,^ and  Oregon.'^ 

§  623.  On  the  other  side  we  find  the  courts  of  Connecticut, 
Pennsylvania,  Dehiware,  ALabaraa,  Mississippi,  Indiana,  Illinois, 
and  Kansas.  In  the  first-named  State,  the  court  thus  announced 
its  views :  "  By  the  custom  of  London,  from  which  our  foreign 
attachment  system  was  principally  derived,  it  is  said,  that  a  judg- 
ment debt  cannot  be  attached ;  and  the  same  has  been  holden  by 
the  courts  in  Massachusetts.  A  fair,  and,  as  we  think,  very  ob- 
vious construction  of  our  statute  on  this  subject,  as  well  as  the 
general  policy  of  our  attachment  laws,  leads  us  to  a  different 
conclusion.  It  is  enacted  that  '  where  debts  are  due  from  any 
person  to  an  absent  and  absconding  debtor,  it  shall  be  lawful  for 
any  creditor  to  bring  his  action  against  such  absent  and  abscond- 
ing debtor,'  &c. ;  and  that  '  any  debt  due  from  such  debtor  to  the 
defendant  shall  be  secured  to  pay  such  judgment  as  the  plaintiff 
shall  recover.'  The  provisions  of  this  statute  were  extended,  in 
1830,  to  the  attachment  of  debts  due  to  such  persons  as  should 
be  discharged  from  imprisonment.  The  language  of  this  statute 
clearly  embraces  judgment  debts  as  well  as  others,  and  the  reason 
and  equity  of  it  are  equally  extensive.  A  judgment  debt  is  liqui- 
dated and  certain,  and,  in  ordinary  cases,  little  opportunity  or 
necessity  remains  for  controversy  respecting  its  existence,  char- 
acter, or  amount.  The  policy  of  our  laws  has  ever  required  that 
all  the  property  of  a  debtor,  not  exempted  by  law  from  execu- 
tion, should  be  subject  to  the  demands  of  his  creditors,  and  that 
every  facility,  consistent  with  the  reasonable  immunities  of  debt- 
ors, should  be  afforded  to  subject  such  property  to  legal  process. 

"  It  is  true,  as  has  been  contended,  that  to  subject  judgment 
debts  to  attachment,  and  especially  those  upon  which  executions 
have  issued,  may,  in  some  cases,  produce  inconvenience  and 
embarrassment  to  debtors,  as  well  as  to  creditors.  Such  conse- 
quences have  resulted  from  the  operation  of  our  foreign  attach- 
ment system,  in  ordinary  cases  ;  and  this  was  foreseen  and  has 
been  known  to  our  legislators,  by  whom  this  system  has  been  in- 
troduced, continued,  and  extended ;  but  the  general  interest  of 
the  community  in  this  respect  has  been  considered  as  paramount 

1  Franklin  v.  Ward,  3  Mason,  136.  3  Trowbridge  v.  Means,  5  Arkansas, 

2  Shinn  v.  Zimmerman,  3  Zabriskie,     135 ;  Tunstall  v.  Means,  Ibid.  700. 
150.  *  Norton  v.  Winter,  1  Oregon,  47. 

[536] 


CHAP.  XXXII.]    BY   DEFENDANT   AGAINST   GAENISHEE.  §  625 

to  the  possible  and  occasional  inconveniences  to  which  individu- 
als may  be  sometimes  subjected.  A  judgment  debtor,  in  such 
cases,  is  not  without  relief ;  he  may  resort,  whenever  serious 
danger  or  loss  is  apprehended,  either  to  his  writ  of  audita  querela, 
or  to  the  powers  of  a  court  of  chancery  for  appropriate  relief."  ^ 

§  624.  The  same  views,  substantially,  influenced  the  courts  of 
Pennsylvania,^  Delaware,^  Alabama,*  Mississippi,^  Indiana,^  Illi- 
nois,' and  Kansas,^  to  the  same  conclusion  ;  and  while  there  is 
much  force  in  the  contrary  reasons,  it  is  difficult  to  lay  aside  the 
demands  of  public  policy,  in  favor  of  subjecting  all  of  a  debtor's 
effects,  —  save  such  as  are  by  law  expressly  exempted,  —  to  the 
payment  of  his  debts.  A  striking  illustration  of  the  disadvan- 
tage of  exempting  judgment  debts  from  attachment,  would  be  in 
a  case,  by  no  means  improbable,  of  a  debtor  having  no  visible 
property,  and  no  debts  due  him  but  judgment  debts,  but  enough 
of  such  debts  to  pay  his  own  liabilities.  Upon  what  principle  of 
right  or  justice,  under  such  circumstances,  ought  his  creditors  to 
be  denied  access  by  this  process  to  the  debts  thus  due  him  ?  Is 
the  temporary  inconvenience  to  which  his  debtors  might  be 
exposed  sufficient  to  outweigh  all  the  considerations  in  favor  of 
subjecting  them  to  the  payment  of  debts,  without  the  payment 
of  which  a  fraud  may  be  perpetrated  in  defiance  of  law  ? 

§  625.  However  strongly  these  reasons  apply  to  the  case  of  a 
garnishment  of  the  judgment  debtor  in  the  same  court  in  which 
the  judgment  was  rendered,  their  force  is  lost  when  the  judg- 
ment is  in  one  court  and  the  garnishment  in  another.  There  a 
new  question  springs  up,  growing  out  of  the  conffict  of  jurisdic- 
tion which  at  once  takes  place.  Upon  what  ground  can  one 
court  assume  to  nullify  in  this  indirect  manner  the  judgments  of 
another  ?  Clearly,  the  attempt  would  be  absurd,  especially 
where  the  two  courts  were  of  different  jurisdictions,  or  existed 
under  different  governments.  Take,  for  example,  the  case  of  a 
court  of  law  attempting  to  arrest  the  execution  of  a  decree  of  a 

1  Gager  v.  "Watson,  11  Conn.  168.  ■«  Skipper  v.  Foster,  29  Alabama,  330. 

-  Crabb  y.  Jones,  2  Miles,  130;  Sweeny  *  Gray  v.   Henby,   1   Sniedes  &  Mar- 

V.  Allen,  I  Penn.   State,  380 ;  Fithian  v.  sball,  6<J8 ;  O'Brien  v.  Liddell,   10  Ibid. 

New  York  &  Erie  R.  II.  Co.,  31  Ibid.  114.  371. 

3  Belcher    v.    Grubb,    4    Harrington,  ^  Ilalbert  v.  Stinson,  G  Blackford,  398. 

461 ;  Webster  v.  McDaniel,  2  Delaware  ^  Minard  v.  Lawler,  20  Illinois,  301. 

Ch'y,  297.  8  Keith  v.  Harris,  9  Kansas,  386. 

[537] 


§  G27  LEGAL   PROCEEDINGS,  ETC.  [CHAP.  XXXII. 

court  of  equity  for  the  payment  of  money,  by  garnishing  the  de- 
fendant ;  or  that  of  a  State  court  so  interfering  with  the  judgment 
of  a  Federal  court,  or  vice  versd  :  it  is  not  to  be  supposed  that, 
in  either  case,  the  court  rendering  the  judgment  or  decree  would 
or  should  tolerate  so  violent  an  encroachment  on  its  prerogatives 
and  jurisdiction.  This  question  arose  in  South  Carolina,  and  it 
was  there  held,  that  where  the  fund  sought  to  be  reached  is  in 
another  court,  it  cannot  be  attached  ;  ^  and  hence  that  a  judg- 
ment in  a  Federal  court  is  not  the  subject  of  attachment  in  a 
State  court.2  And  in  Rhode  Island  it  was  held,  that  a  party 
could  not  be  charged  there  as  garnishee,  against  whom  a  judg- 
ment had  been  obtained  in  another  State  ;  ^  and  in  Tennessee, 
that  a  judgment  debtor  in  a  court  of  record  could  not  be  sub- 
jected to  garnishment  in  a  suit  before  a  justice  of  the  peace.* 

§  626.  It  would  seem  to  be  almost  needless  to  remark,  that  the 
only  way  to  subject  a  judgment  to  attachment  for  the  payment 
of  a  debt  of  the  plaintiff  therein,  is  by  garnishment  of  the  de- 
fendant. Service  of  the  attachment  on  the  clerk  of  the  court  in 
which  the  judgment  was  obtained  will  not  reach  the  judgment,^ 
and  much  less  would  a  seizure  of  the  judgment  record  have  that 
effect,  or  be  at  all  admissible.^ 

§  627.  Where  it  is  sought  to  charge  a  judgment  debtor  as 
garnishee,  and  the  fact  of  indebtedness  is  in  issue,  the  judgment 
in  favor  of  the  attachment  defendant  against  the  garnishee  makes 
out  a  jjrimd  facie  case  against  the  latter :  if  he  has  discharged  it, 
he  must  show  it.'^ 

1  Young  V.  Young,  2  Hill  (S.  C),  426.  3  American  Bank  v.    Snow,  9  Rhode 

2  Burrell    v.    Letson,   2    Speers,   378.     Island,  11. 

See   Thomas   v.   Wooldridge,   2  Woods,  *  Clodfelter    v.   Cox,   1    Sneed,    330. 

G67  ;    Perkins    v.    Guy,    2   Montana,    16.  iS'ec/ co(;/m,  Luton  i;.  Hoehn,  72  lUinois,  81. 

But  the  Supreme  Court  of  Pennsylvania  ^  Daley  v.  Cunningham,  8  Louisiana 

held,  that  a  judgment  debtor  in  a  judg-  Annual,  55. 

ment  recovered  in  New  York,  could  be  ^'  Hanna  v.  Bry,  5  Louisiana  Annual, 

charged  as   garnishee  in   Pennsylvania.  651. 

Jones  V.  New  York  &  Erie  R.  R.  Co.,  1  "  O'Brien  v.   Liddell,   10    Sraedes   & 

Grant,  457.  Marshall,  371. 
[538] 


CHAP.  XXXIII.]       ANSWER    OF   THE    GARNISHEE.  §  629 


CHAPTER     XXXIII. 

ANSWER    OF   THE   GARNISHEE. 

§  628.  In  most  of  the  States,  the  manner  in  which  a  garnishee 
responds  to  the  proceedings  against  him,  is  by  a  sworn  answer  to 
interrogatories  propounded  to  him.  This  answer  must  be  made 
by  the  garnishee  in  person  ;  the  power  to  make  it  under  oath 
cannot  be  conferred  on  another.^  By  the  custom  of  London  the 
garnishee  might  plead  that  he  had  no  moneys  of  the  defendant  in 
his  hands  at  the  time  of  the  garnishment,  or  at  any  time  since, 
and  put  the  plaintiff  to  prove  any  money  in  his  hands  ;  or  he 
might  discharge  the  attachment  by  waging  of  law,  that  is,  coming 
into  court  and  swearing,  that  at  the  time  of  the  attachment 
made,  or  at  any  time  since,  he  had  not,  owed  not,  nor  did  detain, 
nor  yet  has,  or  owes,  or  does  detain  from  the  defendant  any 
money .2  Pleading  to  the  garnishment  is  still  practised  in  some 
States,  but  in  far  the  larger  number  the  better  mode  of  respond- 
ing by  answer  is  established.  The  present  chapter  will,  there- 
fore, be  devoted  to  the  consideration  of  the  Answer  of  the 
Garnishee.  This  subject  will  be  treated  under  the  following 
heads : 

I.  What  the  garnishee  may  be  required  to  state,  and  may,  ex 
mero  motu,  state  in  his  answer. 

II.  What  he  may  not  be  required  to  state  in  his  answer. 

III.  Of  amending  the  answer. 

IV.  The  effect  of  the  answer. 

V.  The  construction  to  be  given  to  the  answer. 

§  629.  I.  What  the  Gariiishee  may  he  required  to  state  and  may,  ex 
mero  motu,  state  in  his  Answer.  It  is  the  duty  of  a  garnishee  to 
state,  with  entire  accuracy  and  distinctness,  all  facts  that  may  be 
necessary  to  enable  the  court  to  decide  intelligently  the  question 
of  his  liability.     It  is  no  less  his  interest  to  do  so  ;  for,  should 

1  Dickson  v.  Morgan,  7  Louisiana  Annual,  490. 

2  Priv.  Lond.  258. 

[539] 


§  629  a  ANSWER   OF   THE   GARNISHEE.       [CHAP.  XXXIIl. 

the  defendant  subsequently  institute  an  action  against  him  for 
the  recoveiy  of  the  debt  or  property  in  respect  of  which  the  gar- 
nishee was  made  liable  as  such,  it  would  be  of  the  first  im- 
portance that  the  record  in  the  attachment  suit  should  show 
conclusively  the  ground  upon  which  the  garnishee  was  charged. 
And  for  the  want  of  such  accuracy  and  distinctness,  a  garnishee 
may  be  charged  when  he  ought  not  to  be,  or  may  escape  liability 
when  in  justice  he  should  be  charged. 

§  629  a.  No  statements  or  representations  made  to  the  plaintiff 
by  the  garnishee,  before  his  garnishment,  as  to  his  indebtedness 
to  the  defendant,  whereby  the  plaintiff  was  led  to  institute  the 
garnishment  proceedings,  can  have  the  effect  of  estopping  the 
garnishee  from  denying  such  indebtedness  in  his  answer.  In 
Indiana  a  case  of  this  description  occurred,  where  the  garnishee 
answered,  denying  all  indebtedness,  at  any  time,  to  the  defend- 
ant. To  this  answer  the  plaintiff  replied,  in  estoppel,  that,  before 
the  institution  of  the  garnishment  proceedings,  the  garnishee  ad- 
mitted and  represented  to  the  plaintiff  that  he  had  made  a  cer- 
tain purchase  of  property  of  a  third  person,  which  really  belonged 
to  the  defendant ;  that  a  portion  of  the  purchase-money  remained 
unpaid  ;  and  that  if  the  plaintiff  would  summon  him  as  garnishee, 
he  would  pay  that  unpaid  portion  to  the  plaintiff;  whereby  the 
plaintiff  was  induced  to  institute  the  garnishment  proceedings. 
To  this  reply  the  garnishee  demurred  ;  and  in  the  Supreme  Court 
it  was  held,  that  the  facts  therein  set  forth  did  not  estop  the 
garnishee  from  denying  indebtedness  to  the  defendant.^ 

1  Lewis  V.  Prenatt,  24  Indiana,  98.  "  It  is  diflacult  to  see  how  tlie  doctrine 
The  court  said  :  "  The  matter  alleged  by  could  apply  against  a  garnishee,  as  such, 
way  of  estoppel  falls  very  far  short  of  He  must  answer  under  oath,  and  to  estop 
being  such.  It  consists  merely  of  the  him  from  answering  truly  would  be  to 
admissions  of  the  garnishee,  and  that  the  require  him  to  commit  perjury.  And 
plaintiffs  were  induced  thereby  to  com-  then  the  proceeding  seems  designed  to 
mence  their  proceedings  against  him  as  enforce  only  the  rights  of  the  defendant 
garnishee.  When,  by  the  admission  of  against  the  garnishee,  and  apply  them 
a  fact,  which  is  not  true,  one  draws  an-  to  the  satisfaction  of  the  plaintiff's  de- 
other  into  a  line  of  conduct  from  which  mand  against  him  ;  and  is  not,  probably, 
he  cannot  recede,  and  which  must  result  designed  to  enable  the  plaintiff  to  compel 
to  his  injury,  if  the  fact  be  otherwise  the  performance  of  additional  obligations 
than  it  was  represented,  the  party  making  which  have  arisen  in  his  own  behalf 
the  admission  will  not  afterwards  be  against  the  garnishee.  But  we  need  not, 
permitted  to  show  the  truth  to  be  other-  and  do  not,  place  the  present  decision 
wise,  for  the  reason  that  he  would  thereby  upon  either  of  the  grounds  last  alluded 
perpetrate  a  fraud  upon  the  party  whom  to.  It  is  sufficient  that  the  facts  pleaded 
he  had  misled.  do  not,  at  any  rate,  constitute  an  estop- 
[540] 


CHAP.  XXXin.]       ANSWER   OF   THE    GARNISHEE.  §  630 

§  630.  It  is  incumbent  upon  a  garnishee,  for  his  own  protec- 
tion, to  state  in  his  answer  every  fact  within  his  knowledge, 
which  had  destroyed  the  relation  of  debtor  and  creditor  between 
him  and  the  defendant,  or  which  would  show  that  he  ought  not 
to  be  charged.  For,  a  stranger  to  the  garnishment  proceeding  is 
not,  by  the  judgment  against  the  garnishee,  precluded  from  prov- 
ing that  there  were  facts  within  the  knowledge  of  the  garnishee, 
which  he  did  not  disclose,  and  which,  if  disclosed,  would  have 
discharged  him,  or  that  there  was  collusion  between  him  and  the 
plaintiff  or  defendant  in  the  attachment  suit.^  A  fortiori  is  this 
so  if  he  den^  a  fact  which,  if  disclosed,  would  have  discharged 
him. 2 

The  class  of  cases  to  which  this  rule  has  been  most  frequently 
applied  is  that  where  the  garnishee,  knowing  that  his  indebted- 
ness to  the  defendant  had,  before  the  garnishment,  been  assigned 
to  a  third  party,  yet  confesses  an  indebtedness  to  the  defendant, 
and  is  charged  in  respect  thereof,  and  afterwards,  when  sued  by 
the  assignee,  finds  that  the  judgment  against  him  as  garnishee  is 
no  protection.  Numerous  cases  of  this  descri]3tion  are  reported, 
to  which  more  special  reference  is  subsequently  made.^ 

But  the  rule  extends  to  other  matters  which  were  known  to 
the  garnishee,  and  were  not  disclosed  by  him.  Thus,  where  A. 
was  garnished  in  a  suit  against  B.,  and  failed  in  his  answer  to 
disclose  the  fact,  —  which  was  known  to  him,  —  that,  before  the 
garnishment,  B.  had  applied  to  the  District  Court  of  the  United 
States  to  be  declared  a  bankrupt,  and  soon  after  was  so  declared  ; 
and  judgment  was  accordingly  rendered  against  A.  for  the  debt 
he  confessed  to  be  owing  to  B. ;  and  afterwards  he  was  sued  by 
the  assignee  in  bankruptcy  upon  the  debt,  and  set  up  as  a 
defence  the  judgment  rendered  against  him  as  garnishee :  it 
was  held,  that,  having  in  his  answer  concealed,  or  omitted  to 
give  notice  of,  a  fact  which  he  was  bound  to  disclose,  and  which 
would  have  prevented  a  judgment  against  him,  the  defence  was 

pel.     The  plaintiff  parted  with  no  right,  court,  to  repair  tlie  injury  by  confessing 

and  reHnquished  no  security  ;  he  stood  judgment  for  such  costs.     We  think  that 

exactly  as  he  did  before  the  garnishee  the    demurrer    should    have    been    sus- 

made  the  representations  to  him,  in  all  tained." 

his  relations  with  tiie  whole  world,  ex-  ^  Andrews  v.  Herring,  6  Mass.  210; 

cept  that  he  commenced  his  proceedings  Lamkin  v.  Phillips,  9  Porter,  98. 
of   garnishment,   and    thereby    incurred  ^  Wilkinson  u.  Hall,  6  Gray,  568. 

costs.     And   the   record  informs  us  that  '^  Post,  §  717. 

the   garnishee   at   once   offered,  in   open 

[641] 


§  630  a  ANSWER   OP   THE   GARNISHEE.       [CHAP.  XXXIII. 

unavailable.^  So,  where,  by  law,  wages  due  to  a  person  are 
exempt  from  attachment,  and  A.  gave  to  B.  a  due-bill  for  an 
amount  due  him  for  wages,  and,  upon  being  summoned  as 
garnishee  of  B.,  answered,  admitting  the  giving  of  the  due-bill, 
but  said  nothing  as  to  the  consideration  for  which  it  was  given, 
and  was  charged  as  garnishee ;  it  was  held,  in  an  action  against 
him  by  B.  on  the  due-bill,  that  the  judgment  against  him  was  no 
defence.^  So,  where  A.  was  sued  by  B.,  in  Massachusetts,  on  a 
demand,  and  afterwards,  in  Connecticut,  he  was  summoned  as 
garnishee  of  B.,  and  failed  to  make  known  the  fact  of  the  pre- 
vious suit  in  Massachusetts,  and  was  charged  ;  it  was  held,  in 
the  latter  State,  that  the  payment  by  him  of  the  Connecticut 
judgment  was  no  defence  against  a  recovery  by  B.^  So,  where 
the  maker  of  a  note  to  B.  knew  that  the  note  Avhen  given  be- 
longed in  fact  to  C,  and  when  he  was  summoned  as  garnishee  of 
B.,  he  failed  to  make  known  that  fact ;  the  judgment  against  him 
as  garnishee  was  held  to  be  no  defence  against  an  action  by  C.  on 
the  note.^  So,  where  a  stakeholder  of  a  bet  was  summoned  as 
garnishee  of  A.,  and  suffered  judgment  to  go  against  him  as  such, 
on  account  of  money  deposited  with  him  by  A.,  though  he  had 
been  notified  by  A.  that  the  bet  was,  in  fact,  made  with  the 
money  and  for  the  use  of  B.,  and  failed  to  make  that  fact  known  ; 
it  was  held,  in  an  action  against  him  by  B.  for  the  money,  that 
the  judgment  in  the  garnishment  proceeding  was  no  defence.^ 

§  630  a.  It  often  happens  that  the  same  individual  is  garnished 
in  several  suits  against  the  same  defendant;  and  in  reference  to 
such  a  state  of  fact  the  importance  of  care  in  the  framing  of  the 
garnishee's  answer  in  each  case  after  the  first  is  strikingly 
enforced.  If  the  garnishments  occurred  at  different  times,  the 
garnishee  has  no  occasion,  in  answering  the  first,  to  refer  to  the 
subsequent  ones  ;  but  in  every  subsequent  case  he  should  set 
forth,  and  bring  clearly  to  the  notice  of  the  court,  all  previous 
garnishments,  so  as  to  secure  himself  against  any  more  judgments 
than  the  debt  owing  by  him,  or  the  effects  in  his  hands,  will 
justify.  And  where  two  or  more  garnishments  are  simultaneously 
made,  the  fact  of  their  having  been  so  made  should  be  stated  by 

1  Nugent  V.  Opdyke,  9  Robinson  (La.),  ^  Whipple  v.  Robbins,  97  Mass.  107. 

453.  *  Ritts  V.  Mower,  18  xMaine,  ^61. 

•i  Locls  V.  Johnson,  36  Maine,  464.  ^  Hardy  i\  Hunt,  11  California,  343. 
[542] 


CHAP.  XXXIII.]      ANSWER   OF   THE   GARNISHEE.  §  632 

the  garnishee,  so  as  to  enable  the  court  to  settle  the  several 
rights  of  the  attachers,  as  well  as  protect  him.  If  the  garnishee 
fail  in  thus  presenting  the  facts,  and,  in  consequence  thereof, 
more  judgments  are  rendered  against  him  than  the  debt  owing  or 
the  effects  held  by  him  authorized,  he  is  wholly  remediless.  He 
brings  upon  himself  a  double  Hability  by  his  own  negligence,  and 
the  law  will  not  protect  a  negligent  garnishee,  any  more  than  it 
will  justify  carelessness  in  any  other  party  ;  especially  where  such 
negligence  may  result  to  the  injury  of  a  bond  fide  creditor.^ 
In  every  case  of  this  description  the  second  garnishment  must 
remain  unacted  on  until  the  first  has  been  disposed  of.  The 
garnishee  cannot  be  discharged  in  the  second  case,  because  of  his 
having  been  summoned  in  the  first ;  for  the  plaintiff  in  the  first 
may  recover  no  judgment,  or  one  for  less  than  he  claimed,  and  so 
leave  effects  in  the  garnishee's  hands  sufficient  to  meet  the 
second.  The  proper  course  is  to  continue  the  second  case  until 
the  first  is  finally  determined. ^ 

§  631.  But  though  the  garnishee  is  under  obligation,  for  his 
own  protection  and  that  of  third  parties,  to  state  all  facts  within 
his  knowledge  which  have  destroyed  the  relation  of  debtor  and 
creditor  between  him  and  the  defendant,  he  cannot  be  allowed 
in  his  answer  to  make  allegations,  which  have  the  effect  of 
changing  the  terms  of  a  written  contract,  under  which  he  ap- 
pears to  be  a  debtor  of  the  defendant.  Therefore,  where,  by  a 
written  contract,  the  garnishee  was  bound  to  pay  the  defendant 
a  certain  sum  of  money,  it  was  held,  that  he  could  not  allege  in 
his  answer  that  that  sum  was  to  be  paid  in  a  certain  description 
of  bank  paper.^ 

§  632.  If  the  garnishee  was  not  indebted  to,  or  did  not  hold 
property  of,  the  defendant,  he  should  simply  and  explicitly  so 
declare.  If  he  be  in  doubt  whether  under  an  existing  state  of 
facts  he  is  chargeable,  he  should  state  all  the  essential  facts  with 
minuteness  and  precision,  and  leave  it  for  the  court  to  decide  the 
question  of  his  liability.  And  it  will  be  advisable  for  him  to  take 
the  same  course,  whenever  his  liability  grows  out  of  transactions 
in  which  are  involved  a  multiplicity  of  facts.     If  he  is  indebted 

1  Houston  V.  Wolcott,  7  Iowa,  173.  Prentiss  v.  Danaher,  20  Wisconsin,  311 ; 

■■2  Cutter  V.  Perkins,  47   Maine,  557;     Danalier  u.  Prentiss,  22  Ibid.  311. 

3  Field  V.  Watkins,  5  Arkansas,  672. 
[543] 


§634 


ANSWER   OF   THE    GARNISHEE.      [CHAP.  XXXHT. 


to  the  defendant  on  account  of  a  single  transaction,  of  simple 
contract,  —  which  is  the  most  usual  case,  —  he  should,  in  like 
manner,  state  the  facts  out  of  which  his  indebtedness  arose. 

§  633.  In  all  cases  he  should  carefully  avoid  any  evasion  or 
equivocation,  for  an  evasive  answer  will  be  treated  as  a  nullity ;  ^ 
or  if  not  so,  it  will  be  construed  most  strongly  against  him  ;  ^  and 
any  equivocation  would  subject  the  whole  answer  to  suspicion. 
He  should,  with  equal  care,  avoid  admitting  himself,  in  his 
answer,  liable  as  garnishee  when  in  fact  he  is  not,  for  when  he 
has  once  made  such  an  admission,  it  is  said  he  is  estopped  from 
afterward  denying  it.^ 

§  633  a.  If  the  law  authorize  a  denial  by  the  plaintiff  of  the 
answer,  that  is  not  the  proper  course  for  him  to  take  if  the  gar- 
nishee refuse  to  answer,  or  answer  evasively ;  for  it  would  pro- 
duce no  issue  to  be  tried  between  them :  he  should  except  to  the 
sufficiency  of  the  answer,  and  if  the  court  sustain  the  exception, 
and  order  the  garnishee  to  answer  more  fully,  and  he  refuse  to 
do  so,  he  is  as  much  in  default  as  if  he  had  not  answered  at  all, 
and  judgment  may  be  rendered  against  him  accordingly.* 

§  634.  The  important  points  to  be  attained  in  framing  a  gar- 
nishee's answer,  are  fulness  and  explicitness.  The  absence  from 
an  answer  of  either  of  these  qualities  might  in  many  cases  sub- 
ject the  garnishee  to  a  judgment  against  him.  He  should  answer 
every  pertinent  interrogatory,  so  far  as  he  is  able,  if  not  in  his 
power  to  do  so  fully ;  otherwise,  it  is  said  in  Massachusetts,  he 
will  be  charged,  even  though  he  should  declare  his  belief  that  he 
has  in  his  hands  nothing  of  the  defendant's.^  And  there  should 
be  nothing  doubtful  in  his  expressions  ;  for,  on  the  ground  that 
he  might  have  used  expressions  free  from  doubt,  those  of  a  doubt- 
ful kind  will  be  construed  against  him.^  The  full  extent  and 
application  of  this  last  rule  will  be  considered  under  the  fifth  head 
of  this  chapter. 


1  Scales    V.    Swan,    9    Porter,    163 ; 
Parker  v.  Page,  38  California,  522. 

2  Grain    v.    Gould,   46    Illinois,   293; 
Keel  V.  Ogden,  5  Monroe,  362. 

•*  Woodbridge   v.   Winthrop,   1   Root, 
557. 

*  Richardson   v.  White,  19  Arkansas, 
241. 

[544] 


5  Shaw  V.  Bunker,  2  Metcalf,  376. 

8  Sebor  v.  Armstrong,  4  Mass.  206 ; 
Cleveland  v.  Clap,  5  Ibid.  201 ;  Kelly  v. 
Bowman,  12  Pick.  883;  Sampson  v. 
Hyde,  16  New  Hamp.  492 ;  Brainard  v. 
Shannon,  60  Maine,  342. 


CHAP.  XXXm.]       ANSWER   OF   THE   GARNISHEE. 


636 


§  635.  When  the  answer  of  a  garnishee  shall  have  come  up  to 
the  foregoing  rules,  and  is  full  and  intelligible  in  reply  to  the  in- 
terrogatories exhibited  against  him,  the  court  will  protect  him 
from  further  interrogatories,  in  relation  to  the  matters  embraced 
in  his  answer.  Thus,  where  the  garnishee  stated  in  his  answer 
that  a  certain  sum  was  in  his  hands  which  had  been  earned  by 
the  defendant,  and  for  which  the  defendant  had  drawn  an  order 
on  him  payable  to  a  third  person  ;  and  the  plaintiff  presented  an 
additional  interrogatory,  requiring  the  garnishee  to  "  state  dis- 
tinctly how  much  money  was  in  his  hands,  at  the  time  of  the 
service  of  the  writ  on  him,  which  had  been  earned  by  the 
defendant ; "  the  court  held,  that  the  garnishee  could  not  be 
charged  in  consequence  of  a  refusal  to  answer  this  interrogatory, 
because  it  merely  demanded  of  him  to  state  distinctly  what  he  had 
fully  stated  before. ^  And  where  the  garnishee  fully  answered  as 
to  all  matters  between  him  and  the  defendant  at  the  time  of  and 
prior  to  the  garnishment ;  but  refused  to  answer  interrogatories 
in  regard  to  transactions  between  them  after  the  garnishment, 
and  which  he  declared  had  no  connection  with  any  business  or 
liabilities  between  him  and  the  defendant ;  the  court  held  him 
not  chargeable  by  reason  of  his  refusal  to  answer  those  interroga- 
tories.^ 

§  636.  Whether  a  garnishee  may  in  any  case  be  charged  be- 
cause he  refuses  to  answer  pertinent  interrogatories,  must  depend 
upon  positive  law  or  established  practice.  In  Vermont,  it  is 
held  to  be  discretionary  with  the  court  to  charge  him  or  not,  and 
that  the  exercise  of  that  discretion  will  not  be  revised  by  a  supe- 
rior tribunal.^  Ordinarily  the  course  to  be  pursued  under  such 
circumstances  is  prescribed  by  statute.  In  some  States,  the  gar- 
nishee may,  by  attachment  of  his  body,  be  compelled  to  answer; 
or  judgment  by  default  may  be  taken  against  him,  to  be  made 
final  in  the  same  manner  as  in  the  case  of  a  defendant,  —  in 
which  case  the  plaintiff  must  prove  the  garnishee's  liability;* 
or  the  refusal  to  answer  is  declared  to  be  an  admission  that  he 

1  Carrique  v.  Sidebottom,  ?,  Metcalf,  »  Worthington  v.  Jones,  23  Vermont, 

297.      See     Ullmeyer    v.    Elimiann,    24     546  ;  Knapp  v.  Levanway,  27  Ibid.  298. 
Louisiana  Animal,  '.Vl.  ■*  Brotherton  v.  Anderson,  0  Missouri, 

'^  Humplirey    v.    Warren,   45    Maine,     388. 
216.     See   Wood  v.  Wall,  24  Wisconsin, 
647. 

85  [545] 


§  G37  ANSWER   OF   THE   GARNISHEE.       [CHAP.  XXXIII. 

has  effects  of  the  defendant,  or  is  indebted  to  him,  to  an  amount 
sufficient  to  satisfy  the  phiintiff's  demand  ;  when  judgment  will 
go  against  him  as  if  he  had  made  the  admission  in  terms.  In 
this  case,  if  there  are  several  interrogatories,  a  refusal  to  answer 
one,  of  a  material  character,  will  not  be  excused  because  the  an- 
swer to  the  others  implies  a  response  to  it.  The  garnishee  must 
answer  all,  in  a  plain  and  distinct  manner,  or  he  will  be  made 
liable.i 

In  all  cases  of  this  description,  the  suggestion  of  the  Supreme 
Court  of  Wisconsin  might  well  be  observed,  —  that  the  court, 
before  rendering  judgment  against  a  gai-nishee  for  failing  to  an- 
swer a  particular  question,  should  inform  him  that  the  question 
is  a  proper  and  pertinent  one  for  him  to  answer,  and  give  him 
thereafter  an  opportunity  to  answer  it.^ 

§  636  a.  Though  the  garnishee  deny  that  he  owes  the  defend- 
ant, or  holds  his  money  or  property,  yet  if  he  refuses  to  answer 
questions  respecting  his  business  relations  with  the  defendant,  so 
as  to  enable  the  court  to  ascertain  his  true  position,  he  Avill  be 
charged,  if  the  law  under  which  he  was  summoned  authorizes  a 
garnishee  to  be  charged  where  he  refuses  to  answer.  He  puts 
his  conclusion  of  law  as  to  his  liability  in  the  place  of  that  of  the 
court,  and  denies  to  the  court  the  means  of  testing  the  correct- 
ness of  that  conclusion.^ 

§  637.  It  is  not  necessary  to  the  fulness  and  explicitness  of  a 
garnishee's  answer,  that  it  should  be  conformed  to  the  technical 
rules  of  pleading.  In  this  respect  it  partakes  of  the  nature  of 
an  answer  in  chancery.  Thus,  where  a  garnishee  answered  that 
he  owned  a  note  of  the  defendant  for  an  amount  greater  than  his 
indebtedness  to  the  defendant,  and  on  the  trial  offered  in  evidence 
an  instrument  in  all  respects  conformable  to  that  described  in  the 
answer,  save  that  it  was  a  bond  instead  of  a  note ;  it  was  held, 
that  the  answer  was  substantially  sustained,  and  that  it  was  of 
no  consequence  that  the  garnishee  had  failed,  in  describing  the 
instrument,  to  employ  the  proper  legal  terms .^ 


1  De  Blanc  v.  Webb,  5  Louisiana,  82  ;  3  Mansfield  v.  N.  E.  Express  Co.,  58 
Vason   V.   Clarke,   4   Louisiana   Annual,     Maine,  35. 

581.  *  Ashby  v.  Watson,  9  Missouri,  235. 

2  Wood  V.  Wall,  24  Wisconsin,  647. 

[546] 


CHAP.  XXXIII.]      ANSWER   OF   THE   GARNISHEE.  §  639 

§  638.  While  it  will  be  required  of  a  garnishee  to  answer  fully 
and  intelligibly  all  pertinent  interrogatories  put  to  him,  regard 
will  still  be  had  to  the  circumstances  in  which  he  is  placed,  and 
which  may  prevent  as  full  and  positive  an  answer  as  would  be 
desirable.  If  the  answer  is  deficient  in  these  respects,  but  it 
appears  that  the  garnishee  has  responded  as  fully  and  positively 
as  he  could,  he  will  not  be  charged  for  failing  to  do  more.  Thus, 
where  the  administrator  of  a  person,  who,  in  his  lifetime,  had 
been  garnished,  answered  "to  the  best  of  his  knowledge,"  it  was 
held,  that,  though  the  answer  might  not  be  sufficient,  if  it  had 
come  from  one  having  certain  knowledge  of  the  business,  yet  as 
it  could  not  be  expected  that  the  administrator  should  be  pos- 
sessed of  the  same  degree  of  knowledge  as  the  intestate,  and  the 
answer  appeared  to  be  the  best  that  could  be  obtained,  it  was 
sufficient.^  So,  where  a  garnishee  disclosed  that  the  defendant 
had  agreed  to  build  a  house  for  him,  and  he  had  agreed  to  pay 
the  defendant  certain  sums  at  certain  stages  of  the  work ;  that 
he  had  generally  paid  before  the  instalments  became  due  ;  but 
that  he  had  no  means  of  ascertaining  whether,  at  the  time  he 
was  summoned,  the  payments  were  in  advance  of  the  work  or 
not ;  it  was  held,  that  he  should  not  be  charged  ;  the  answer 
appearing  to  be  as  definite  as  it  could  be  made.^ 

§  639.  A  garnishee,  in  framing  his  answer,  need  not  confine 
himself  to  matters  within  his  own  knowledge,  but  may  introduce 
into  it  any  extrinsic  facts  which  he  supposes  important  to  a  cor- 
rect determination  of  the  question  of  his  liability,  or  in  reference 
to  the  interests  of  others.  Whether  such  facts  will  affect  the 
issue  will,  of  course,  be  decided  by  the  court.  It  is  principally 
in  regard  to  the  rights  of  third  persons,  not  parties  to  the  pro- 
ceedings, that  the  introduction  of  such  facts  is  desirable.  They 
would  often  be  without  protection,  unless  the  garnishee  were  at 
liberty  thus  to  bring  their  rights  under  the  cognizance  of  the 
court.  The  extrinsic  facts  thus  introduced  may  be  of  almost  any 
description.  They  may  consist  of  writings,  or  verbal  communi- 
cations, or  affidavits  proceeding  from  third  persons,  and  having 
reference  to  the  question  of  his  liability  as  garnishee.  Thus,  a 
garnishee  answered  that  he  had  executed  a  bond  to  the  defend- 
ant, conditioned  for  the  payment  to  him   of  11,000,  in  one  year 

1  Ornisby  v.  Anson,  21  Maine,  23.  -  Harris  v.  Aiken,  3  Tick.  1. 

[547] 


§  639  ANSWER    OF   THE   GAUNISHEE.       [CHAP.  XXXIIT. 

after  the  death  of  the  defendant's  mother,  and  that  he  should 
pay  the  annual  interest  on  that  sum  to  the  mother  during  her 
life  ;  that  he  was  informed,  at  the  time  of  executing  the  bond, 
and  luul  reason  to  believe,  that  it  was  originally  taken  by  the  de- 
fendant for  the  use  of  himself,  his  brother,  two  sisters,  and  a 
minor  child  of  a  deceased  brother,  the  heirs  at  law  of  the  defend- 
ant's mother  ;  that  the  mother  had  died  ;  that  the  defendant, 
after  her  death,  drew  an  order  on  the  garnishee  for  $520,  stating 
that  sum  to  be  in  full  for  his  part  of  the  bond  ;  and  that  in  the 
letter  to  the  drawee,  covering  the  order,  the  defendant  said  that 
the  other  part  of  the  bond  belonged  to  the  other  heirs  of  his 
mother  ;  and  the  order  and  letter  were  annexed  to  and  made  part 
of  the  answer.  It  was  objected  that  these  documents  could  not 
be  received  as  part  of  the  answer ;  but  the  objection  was  over- 
ruled, on  the  ground  that  if  it  were  not  competent  for  the  gar- 
nishee to  disclose  any  thing  but  what  is  within  his  own  personal 
knowledge,  the  inteiests  and  rights  of  cestuis  que  trust  would  be 
in  great  jeopardy  ;  for  their  property  would  go  to  pay  the  debts 
of  the  trustee,  and  he  might  be  wholly  unable  to  respond. ^  So, 
where  a  garnishee  offered  as  a  part  of  his  answer,  certain  affida- 
vits of  third  persons,  the  court  held  them  admissible  ;  and  laid 
down  the  broad  proposition,  that  a  garnishee  might  refer  to  let- 
ters, statements,  assignments,  or  other  instruments  and  docu- 
ments, and  adopting  them,  make  them  part  of  his  answer.^ 

In  all  such  cases,  however,  it  is  considered,  in  Massachusetts, 
where  the  answer  was  formerly  conclusive,  and  could  not  be 
controverted,  that  the  extrinsic  facts  thus  brought  into  the  an- 
swer have  no  force  in  themselves,  but  are  to  be  regarded  only  so 
far  as  the  garnishee  may  declare  his  belief  in  their  truth.  They 
are  received  on  the  authority  of  his  oath.  If  he  does  not  believe 
them  to  be  true,  he  ought  not  to  make  them  part  of  his  answer. 
If  he  makes  them  a  part  of  his  answer,  and  at  the  same  time 
states  his  disbelief  of  their  truth,  the  answer  would  so  far  be  nu- 
gatory. Hence  it  is  not  alone  the  facts  themselves,  but  the  gar- 
nishee's adoption  of  them,  and  his  belief  in  their  truth,  that  give 
them  weight  in  the  question  of  his  liability.^     Therefore,  an  affi- 

1  Willard  v.  Sturtevant,  7  Pick.  194.  3  Hawes   v.     Langton,    8    Pick.    67  ; 

■■i  Kelly   V.   Bowman,    12    Pick.    383  ;     Kelly  v.  Bowman,  12  Ibid.  383. 
Giddings  v.  Coleman,  12  New  Hamp.  153; 
Bell  V.  Jones,  17  Ibid.  307. 
[548] 


CHAP.  XXXIII.]      ANSWER   OF   THE   GARNISHEE.  §  640 

davit  made  by  a  person  interested  in  the  suit  will  be  received, 
when  made  a  part  of  the  garnishee's  answer,  because  it  is  re- 
ceived on  the  garnishee's  oath,  and  not  as  the  testimony  of  a 
witness.^  Since  the  adoption  in  the  Revised  Statutes  of  Massa- 
chusetts, of  1836,  of  a  provision  allowing  the  plaintiff  to  allege 
and  prove  any  facts  not  stated  or  denied  by  the  garnishee  in  his 
answer,  that  may  be  material  in  deciding  the  question  of  the 
garnishee's  liability,  it  is  held  there,  that  where  no  such  facts  are 
alleged  or  proved,  and  the  garnishee  has  answered  fairly  and 
made  a  full  disclosure,  the  facts  which  he  states  to  be  true,  from 
his  information  and  belief,  are  to  be  considered  as  true,  as  well 
as  those  stated  on  his  own  knowledge.^ 

But  where,  on  the  examination  of  a  garnishee,  a  letter  was 
shown  him  from  a  third  person  not  a  party  to  the  suit,  for  the 
purpose  of  establishing  that  the  property  in  the  garnishee's  hands 
was  not  the  defendant's,  but  another's,  and  the  garnishee  authen- 
ticated the  signature  to  the  letter,  but  said  nothing  of  its  con- 
tents ;  the  court  refused  to  receive  the  letter  as  a  part  of  his 
answer,  because,  though  its  genuineness  was  established,  its 
contents  might  be  untrue,  and  could  not  be  presumed  to  be  true.^ 

§  639  a.  It  is  no  valid  objection  to  an  interrogatory  to  a  gar- 
nishee, that  it  requires  him  to  make  a  statement  of  his  accounts 
with  the  defendant.  Sometimes  that  might  be  the  only  mode  of 
ascertaining  the  true  state  of  the  accounts  of  the  parties  ;  and 
litigants  cannot  be  deprived  of  their  rights,  because  it  may  occa- 
sion the  garnishee  some  inconvenience.* 

§  640.  It  has  been  attempted  to  screen  garnishees  from  answer- 
ing interrogatories,  a  response  to  which  might  show  them  to  have 
been  parties  to  fraudulent  sales  or  dispositions  of  personal  prop- 
erty. In  Massachusetts,  the  courts  have  sustained  such  questions, 
and  required  disclosures,  even  though  the  effect  might  be  to  sub- 
ject the  garnishee  to  liability  as  such  out  of  his  own  property  ;  ^ 
but  in  Louisiana  a  garnishee  cannot  be  compelled  to  answer  ques- 
tions intended  to  elicit  answers  showing  that  he  held  under  simu- 

i  Kelly   V.   Bowman,    12    Pick.    383.  *  Stackpole  v.  Newman,  4  Mass.  85. 

But  sueli  affidavit  will  not  be  received  or  ^  Hoquest  v.  Steamer  B.  E.  Clark,  13 

noticed  when  not  made  part  of  the  gar-  Louisiana  Annual,  2X0. 

nishee's  answer.     Minchin  v.  Moore,  11  ^  Ante,  §  ,458;  Devoll  y.  Brownell,  5 

Mass.  90.  Pick.  448 ;  Neally  v.  Andjrose,  21  Ibid. 

2  Fay  V.  Sears,  111  Mass.  154.  185;  Lamb  v.  Stone,  U  Pick.  527. 

[549] 


§641 


ANSWER    OF   THE   GARNISHEE.       [CHAP.  XXXIII. 


lilted  or  fraudulent  titles  property  which  reall}^  belonged  to  the 
defendant.! 

§  641.  The  extent  to  which  privileged  communications  to  a 
garnishee  are  protected  from  the  scrutiny  of  a  plaintiff's  inter- 
rogatories, has  been  the  subject  of  decision  in  Louisiana.  The 
Code  of  that  State  provides  that  "  no  attorney  or  counsellor-at- 
law  shall  give  evidence  of  an}-  thing  that  has  been  confided  to 
him  by  his  client,  without  the  consent  of  such  client."  This  is, 
in  effect,  embodying  in  a  statute  the  principle  of  the  common 
law. 

In  that  State,  an  attorney-at-law  was  summoned  as  garnishee  of 
his  client,  and  various  interrogatories  were  propounded  to  him, 
intended  to  elicit  the  date  of  his  retainer,  who  was  his  client,  the 
sums  of  money  he  had  received,  the  persons  from  whom  received, 
the  payments  made,  and  the  persons  to  whom,  and  the  date  of  the 
correspondence.  Other  interrogatories  called  for  letters  from  the 
defendant,  and  a  copy  of  the  defendant's  letter  to  him  acknowl- 
edging the  receipt  of  certain  notes,  or  the  garnishee's  letter  in 
reply  thereto.  The  garnishee  refused  to  answer  certain  of  the 
interrogatories,  on  the  ground  that  he  was  called  upon  to  disclose 
privileged  communications  received  from  his  clients.  In  reference 
to  this  the  court  said :  "  It  is  evident  that  the  attorney  cannot  be 
permitted  to  disclose  any  thing  that  has  been  confided  to  him  by 
his  client.  But  to  bring  the  matter  within  the  privilege  which 
exempts  the  communication  from  disclosure,  it  must  appear  who 
is  the  client,  in  order  to  know  whose  communications  are  to  be 
excluded.  Again,  it  must  be  something  confided  by  the  client  to 
the  attorney.  Now,  the  object  is  simply  to  ascertain  who  is  the 
client  who  intrusted  the  notes  to  the  garnishee  for  collection  ; 
when  that  relationship  commenced  and  ended  ;  and  what  money 
has  been  received,  and  what  paid  over,  and  to  whom  paid.  None 
of  these  matters  appear  to  us  to  be  privileged  communications ; 
and  if  an  attorney-at-law  were  not  permitted  to  disclose  who  was 
his  client,  and  what  sums  of  money  he  had  received  or  disbursed 
on  his  account,  it  would  give  rise  to  great  frauds.  If  the  attorney 
may  be  interrogated  as  to  who  is  his  client,  he  may  also  be  asked 
through  whose  agency,  or  in  what  manner,  and  at  what  time  he 
was  retained."    This  ruling  of  the  court  covered  all  the  interrog- 

J  Kearney  v.  Nixon,  19  Louisiana  Annual,  16 ;  Battles  v.  Simmons,  21  Ibid.  416. 
[550] 


CHAP.  XXXTII.]       ANSWER    OF   THE   GARNISHEE.  §  642 

atories  except  three  ;  and  those  the  court  required  him  to  answer, 
unless  he  should  to  each  one  answer  on  oath  that  he  could  not 
answer  the  same  without  disclosing  matters  confided  to  him  by 
his  client,  or  advice  given  by  him  to  his  client,  concerning  the 
business  about  which  he  was  retained. ^ 

In  another  case  an  attorney  was  garnished,  and  answered  that 
he  had  received  a  sum  of  money  on  account  of  the  defendant, 
whose  attorney  he  was,  but  added  that  he  had  almost  immedi- 
ately paid  it  over  according  to  his  client's  instructions.  When 
questioned  as  to  when  and  to  whom  he  paid  it,  he  refused  to 
answer  ;  contending  that  he  could  not  answer  without  disclosing 
matters  and  instructions  confided  to  him  in  professional  confi- 
dence. But  the  court  held,  that  the  disclosure  could  not  be  ob- 
jected to  on  that  ground,  as  the  time  of  payment  was  within  his 
knowledge  independently  of  any  communication  he  might  have 
received  from  his  client ;  and  enforced  its  opinion  with  some  in- 
structive remarks  about  "  a  barefaced  resort  to  such  shameful 
evasions,  under  the  pretence  of  a  scrupulous  regard  for  profes- 
sional obligations."  ^ 

§  642.  II.  What  the  G-arnishee  may  not  he  required  to  state  in 
his  Anstver.  A  very  wide  latitude  of  interrogatory  is  usually  al- 
lowed, in  endeavoring  to  ascertain  whether  the  garnishee  can  be 
made  liable.  Almost  every  variety  of  question  bearing  upon  this 
point  may  be  propounded,  and  an  answer  required,  and,  where 
authorized  by  statute,  or  by  the  course  of  practice,  compelled  by 
attachment  of  the  garnishee's  body.  Still,  there  must  be  a  limit 
to  this  power  of  inquisition  ;  and  the  garnishee  has  a  right  to  have 
the  correctness  of  a  proposed  inquiry  adjudicated  by  the  court,  and 
is  not  bound  to  submit  to  any  and  every  conceivable  investigation, 
without  objection  ;  or,  if  he  objects,  become  liable  to  pay  the  entire 
debt  in  the  main  action,  if  his  objection  should  prove  unfounded.^ 
And  it  seems  to  be  conceded  that  the  limit  of  investigation  is  to 
be  fixed  in  the  discretion  of  the  court  in  which  the  garnishee  is 
examined  ;  the  action  of  wliich  will  not  be  revised  by  a  superior 
tribunal.*  Therefore,  where  a  garnishee  after  answering,  Avas 
required  to  answer,  and  did  answer,  three  sets  of  interrogatories 

1  Shaughnessy  v.  Fogg,  15  Louisiana  ^  Sawyer  v.  Webb,  5  Iowa,  ^IS. 
Annual,   330.     See    White    v.   Bird,    20  *  Wortliington  v.  .Tones,  23  Vermont, 
Ibid.  188.  54G  ;  Knapp  v.  Levanway,  27  Ibid.  298. 

2  Comstock  V.  Paie,  18  Louisiana,  479. 

[551] 


§  G44  ANSWER   OF   THE   GARNISHEE.       [CHAP.  XXXIII. 

in  detail,  and  the  plaintiff  filed  a  fourth  set,  the  garnishee  prayed 
the  opinion  of  the  court  whether  he  was  bound  to  answer  them, 
and  the  court  decided  he  was  not.^ 

§  643.  All  interrogatories  must  be  confined  to  such  matters,  as 
the  law  by  which  they  are  authorized  contemplates  as  the  ground 
of  a  garnishee's  liability.  Thus,  where  a  statute  authorized  the 
plaintiff  to  exhibit  interrogatories  touching  the  estate  and  effects 
of  the  defendant  in  possession  or  charge  of  the  garnishee,  or  debts 
due  and  owing  from  him  to  the  defendant ;  and  one  who  held  the 
office  of  justice  of  the  peace  was  garnished,  and  he  was  asked  how 
many  judgments  were  entered  on  his  docket  in  favor  of  the  at- 
tachment defendant,  and  when,  against  whom,  and  for  what 
amount  they  were  respectively  entered ;  it  was  held,  that  the 
question  was  illegal,  and  not  such  as  the  garnishee  was  bound 
to  answer.2  So,  where  interrogatories  were  propounded  to  a  gar- 
nishee relating  to  personal  property  mortgaged  to  him  by  the 
defendant,  to  indemnify  him  against  liabilities  he  had  assumed  for 
the  defendant ;  it  was  held,  that,  as  a  mortgagee  of  goods  not  in 
possession  of  them  could  not  be  charged  as  garnishee  in  respect 
of  the  mortgage,  the  questions  were  impertinent,  and  should  not 
be  answered.^ 

§  6-44.  Every  court  will,  of  course,  protect  the  garnishee  from 
impertinent  and  vexatious  questions,  especially  after  he  has  fully 
answered.  Hence,  in  Massachusetts,  where  a  garnishee  had  so 
answered,  and  the  plaintiff  put  further  interrogatories,  requiring 
him  to  state  whether  he  had  not,  in  conversation  with  third  per- 
sons, said  differently  from  the  statements  of  his  answer,  the  court 
declared  that  the  plaintiff  had  no  right  to  ask  questions  for  the 
purpose  of  discrediting  the  garnishee's  disclosures ;  that  the 
plaintiff  was  bound  to  take  the  garnishee's  statements  under  oath 
as  truth,  and  could  neither  impeach  his  character  nor  contradict 
his  testimony ;  that  therefore  he  was  not  entitled  to  the  privilege 
of  cross-examination ;  and  that  what  the  garnishee  might  have 
told  other  persons,  or  said  on  former  occasions,  is  immaterial,  and 
not  a  proper  subject  of  inquiry.^ 

1  Warner  v.  Perkins,  8  Gushing,  518.  31 :  Roquest  v.  Steamer  B.  E.  Clark,  13 
See  ante,  §  635.  Louisiana  Annual,  210. 

2  Corbyn  i'.  Bollman,  4  Watts  &  Ser-  3  Callender  v.  Furbish,  46  Maine,  226. 
geant,  342;  Lyman  v.  Parker,  33  Maine,  ■*  Grossman  v.  Grossman,  21  Pick.  21; 


[552] 


Warner  v.  Perkins,  8  Gushing,  518. 


CHAP.  XXXIir.]       ANSWER    OF   THE   GARNISHEE. 


648 


§  645.  It  may  be  regarded  as  a  sound  rule,  that  a  garnishee 
shall  not  be  required  to  state  in  his  answer  any  thing  that  will 
deprive  him  of  a  defence  against  his  debt  to  the  defendant, 
which,  if  he  were  sued  by  the  defendant,  he  might  set  up  in  bar 
of  the  action.  Thus,  where  a  garnishee  answered,  that,  more 
than  twenty  years  before  he  was  summoned,  he  had  given  a  bond 
to  the  defendant,  payable  on  demand,  the  point  was  made 
whether  he  could  be  asked  if  he  had  paid  the  bond ;  and  the 
court  would  not  suffer  the  question  to  be  put,  because  that  would 
be  to  make  him  give  up  a  defence  he  would  have  if  sued  by  the 
defendant;  when  he  might  plead  payment  and  rely  on  the  lapse 
of  time  to  support  the  plea.^ 

§  646.  It  seems  to  be  sustained  by  authority,  and  consonant 
with  sound  principles,  that  a  garnishee  shall  not  be  required  to 
state  any  thing  in  his  answer  which  will  show  him  to  have  been 
guilty  of  a  violation  of  law.  Thus,  where  a  garnishee  was 
asked  whether  he  had  not  received  usurious  interest  of  the 
defendant,  it  was  held,  that  as  he  could  not  answer  affirmatively 
without  criminating  liimself,  he  should  not  be  required  to  respond 
to  the  interrogatory .2 

§  647.  It  has  also  been  held  in  Massachusetts,  and  in  Maine, 
that  a  garnishee  shall  not  be  compelled  to  state  any  thing  which 
might  tend  to  impair  or  impeach  his  title  to  real  estate,  derived 
from  the  defendant.-^  In  New  Hampshire,  however,  the  contrary 
doctrine  was  held,  in  a  case  where  the  garnishee  stated  in  his  an- 
swer a  conveyance  of  real  estate  to  him  by  the  defendant,  and 
the  court  required  an  answer  to  supplementary  interrogatories, 
intended  to  show  the  conveyance  to  have  been  made  without 
consideration.* 

§  648.  Where,  however,  the  garnishee  disclosed  a  conveyance 
of  real  estate  by  tlie  defendant  to  him,  it  was  decided  that  the 
following  question  might  be  put  to  him  :  "  Is  there  any  real 
estate  in  your  possession,  belonging  to  the  defendants,  which  you 
hold  in  trust  for  them,  so  that  you  are  accountable  for  the  rents 

1  Gee?;.  Warwick,  2  Haywood  (N.C.),  Russell  v.  Lewis,  15  Ibid.  127;  Moor  v. 
354.  Towle,  38  Maine,  1:^:3. 

2  Boardnian  v.  Roe,  13  Mass.  104.  *  Bell  v.  Kendrick,  8  New  Hamp.  520. 

3  Boardman    v.   Roe,    13   Mass.    104 ; 

[553] 


§  OoO 


ANSWER   OF   THE    GARNISHEE.       [CHAP.  XXXIIL 


and  profits  tliereof  ?  or  are  you  under  any  oblifxii^tion  to  account 
for  the  proceeds  of  the  same,  or  of  any  part  thereof,  if  sold  by 
you?"i  And  in  a  case,  where  it  was  alleged  that  real  estate 
conveyed  by  the  defendant  to  the  garnishee  was  held  in  trust,  to 
be  disposed  of  for  the  benefit  of  the  latter,  the  court  decided  that 
the  garnishee  might  be  required  to  answer  the  following  ques- 
tion :  "  At  the  time  you  received  a  deed  or  deeds  of  land  from 
the  defendant,  or  at  any  other  time  since,  was  there  any  agree- 
ment in  writing  or  by  parol,  that  you  should  dispose  of  the  same 
and  account  to  him  in  any  manner  for  the  proceeds?"  —  and 
that,  in  the  event  of  the  question  being  answered  in  the  affirma- 
tive, there  might  be  a  further  examination  as  to  the  disposition 
of  the  proceeds.^ 

§  649.  We  have  seen  ^  that  a  garnishee  ma}^  make  the  state- 
ments of  others  a  part  of  his  answer,  and  that,  when  so  made, 
they  will  be  received  and  considered.  It  is,  however,  entirely 
at  his  option  to  incorporate  such  statements  in  his  answer,  and 
the  court  will  not  compel  him  to  do  so  against  his  will.  There- 
fore, where  the  plaintiff  delivered  to  the  garnishee  an  affidavit  of 
the  defendant  touching  the  effects  in  the  garnishee's  hands,  and 
tending  to  subject  them  to  the  attachment,  and  requested  the 
garnishee  to  make  the  affidavit  a  part  of  his  answer,  which  was 
refused  ;  the  court  decided  that  it  had  no  power  to  compel  a 
compliance  with  the  plaintiff's  demand.* 

§  6.50.  III.  Of  Amending  the  Ansioer  of  a  Garnishee.  The 
propriety  of  allowing  a  garnishee  to  amend  his  answer,  or  to  put 
in  a  new  answer,  has  in  several  instances  been  the  subject  of  dis- 
cussion, and  it  has  usually  been  sustained.  There  is,  indeed,  no 
sufficient  reason  why  an  amendment  in  such  case  should  not  be 
permitted.  There  may  be  cases  where  the  garnishee  discovers 
new  facts,  or  finds  that  he  has  made  an  imperfect  or  erroneous 
statement;  and  there  seems  to  be  nothing  in  principle  to  prevent 
him,  before  final  judgment,  from  making  a  more  complete,  per- 
fect, and  correct  answer,  being  responsible  as  in  all  other  cases 
for  its  truth.  The  only  objection  which  could  arise  is,  that  a 
garnishee  might  be  induced,  by  new  suggestions  and  new  views, 


1  Russell  V.  Lewis,  15  Mass.  127. 

2  Hazen  v.  Emerson,  9  Pick.  IM. 

3  Ante,  §  080. 

[554] 


<  Hawes    v.    Langton,    8    Pick.    67 ; 
Kelly  V.  Bowman,  12  Ibid.  383. 


CHAP.  XXXm.]       ANSWER   OF   THE   GARNISHEE.  §652 

to  put  in  an  answer  varying  from  his  first  answer,  and  not  true 
in  itself.  But  when  it  is  considered,  that  by  any  mode  of  ad- 
ministering the  law,  the  garnishee  may  take  his  own  time  and 
his  own  counsel,  and  make  such  answer  as  he  will,  there  seems 
to  be  no  more  danger  of  falsification  in  the  one  case  than  in  the 
other.i 

In  Louisiana,  while  the  discretionary  authority  of  the  court  to 
permit  amendments,  where  an  answer  is  really  responsive  to  the 
question,  is  admitted,  it  is  yet  considered  that  an  answer  which 
is  manifestly  evasive  ought  not  to  be  amended,  as  such  a  practice 
might  lead  to  frivolous  delays.^  And  in  that  State  it  was  held, 
that  where  a  garnishee  has  answered  acknowledging  his  indebted- 
ness to  the  defendant,  he  cannot  afterwards  file  another  answer, 
the  effect  of  which  is  to  release  him  from  liability. ^  And  so  in 
Tennessee.* 

§  651.  IV.  The  Effect  to  he  given  to  the  Garnishee's  Anstver. 
This  depends  in  a  great  measure  on  the  statutory  provisions  of 
each  State.  In  some  States,  the  answer  is  conclusive ;  in  others, 
it  may  be  controverted.  In  either  case,  however,  as  to  all  state- 
ments of  fact,  given  on  the  garnishee's  personal  knowledge,  as 
■well  as  to  all  declarations  of  his  belief  of  facts  derived  from  in- 
formation, the  answer  is  taken  to  be  true;^  in  the  former  class 
of  States,  conclusively  so  ;  in  the  latter,  subject  to  be  disproved 
by  competent  evidence. 

§  652.  In  Massachusetts,  the  garnishee's  liability  formerly 
turned  entirely  upon  his  answer,  and  evidence  collateral  thereto 
was  not  admitted  ;^  and  so  stringent  was  this  rule,  that  an  agreed 
statement  of  facts,  signed  by  the  garnishee,  but  not  sworn  to, 
and  submitted  by  the  plaintiff,  defendant,  and  garnishee,  for  the 
decision  of    the   Court,  as    to  the  liability  of  the   latter,  was 

1  Hovey  V.  Crane,  12  Pick.  167  ;  Car-  nual,  379 ;  Rose  v.  Whaley.  14  Ibid.  374  ; 
rique  v.  Sidebottom,  3  Metcalf,  2U7  ;  Bu-     Tapp  v.  Green,  22  Ibid.  42. 

ford  V.  Welborn,  6  Alabama,  818;  Xeil-  3  Thomas  v.  Fuller,  26  Louisiana  An- 
son  V.  Scott,   1    Rice's  Digest  of  South  nual,  625. 

Carolina   Reports,   80 ;  Murrell  v.  John-  *  Pickler  v.  Rainey,  4  Heiskell,  335. 

son,  3   Hill   (S.  C),  12;  Smith  v.  Brown,  *  Grossman  v.  Grossman,  21  Pick.  21; 

5  California,   118;  Stedman  v.   Vickery,  Meeker  t;.  Sanders,  0  Iowa  61. 
42   Maine,  132;  Newell  r.  Blair,  7  Mich-  «  Coinstock    v.   Farnum,  2    Mass.  96; 

igan,  103.  Stackpole  v.  Newman,  4  Ibid.  85 ;  Hawes 

2  Davis  V.  Oakford,  11  Louisiana  An-  v.  Langton,  8  Pick.  67. 

[555] 


§654 


ANSWER   OF   THE   GARNISHEE.       [CHAP.  XXXIII. 


rejected  by  tlie  conrt.^  In  the  Revised  Statutes  of  1886,  cli.  109, 
§  15,  tliere  is  a  slight  modification  of  the  strict  rule  which  had 
prevailed,  in  that,  while  it  declares  the  answers  and  statements 
of  the  garnishee  shall  be  considered  as  true,  in  deciding  how  far 
he  is  chargeable,  it  allows  either  party  to  allege  and  prove  any- 
other  facts,  7iot  stated  nor  denied  hy  the  garnishee,  that  may  be 
material  in  deciding  that  question.^  In  Maine,  and  in  Tennessee, 
the  garnishee's  liability  is  determined  solely  by  his  answer.^ 

§  653.  In  most  of  the  other  States  the  answer  is  taken  to  be 
true,  but  is  subject  to  be  controverted  and  disproved.  The  effect 
given  to  it  in  this  respect  is,  however,  confined  to  its  statements 
of  facts.  If  the  garnishee  sets  up  rights  or  draws  conclusions, 
arising  out  of  or  resulting  from  the  facts  stated,  such  rights  and 
conclusions  are  necessarily  subject  to  revision  by  the  court.^ 

In  Alabama,  the  answer  is  taken  to  be  strictly  true,  and  if  a 
deed  is  appended  to  it,  it  is  to  be  considered  genuine,  unless  the 
answer  be  traversed.^  In  Missouri,^  Illinois,'^  Arkansas,^  Louisi- 
ana,^ and  Mississippi ,^0  the  same  effect  is  .given  to  the  answer  until 
it  is  disproved. 

§  653  a.  Where  the  answer  is  considered  conclusive  unless 
controverted,  it  is  error  to  allow  evidence  to  be  given  to  contra- 
dict it,  until  issue  has  been  regularly  taken  upon  it.^^ 

§  654.  In  ascertaining  the  effect  to  be  given  to  an  answer, 
when  assailed  by  opposing  testimony,  but  few  cases  can  be  found. 
In  Illinois,  the  question  came  up,  and  it  was  held,  that  the  an- 
swer is  not  entitled  to  have  the  same  effect  as  that  of  a  defend- 
ant to  a  bill  in  chancery,  requiring  the  testimony  of  two  witnesses. 


1  Barker  v.  Taber,  4  Mass.  81. 

2  Gouch  V.  Tolman,  10  Cusliing,  104. 

8  Lamb  v.  Franklin  Man.  Co.,  18 
Maine,  187;  Cbeatbam  v.  Trotter,  Peek, 
198 ;  Chiblress  o.  Dickins,  8  Yerger,  113. 

4  Lamb  v.  Franklin  Man.  Co.,  18 
Maine,  187. 

5  Robinson  v.  Rapelye,  2  Stewart,  86. 

6  Davis  V.  Knapp,  8  Missouri,  657 ; 
McEvoy  r.  Lane,  9  Ibid.  48;  Stevens  v. 
Gwathmey,  Ibid.  636  ;  Black  v.  Paul,  10 
Ibid.  10.3  ;  Holton  v.  South  Pacific  R.  R. 
Co.,  50  Ibid.  151. 

^  Kergin  v.  Dawson,  6  Illinois  (1  Gil- 
[5561 


man 

352. 

8 

506; 
9 

Loui 
Ibid, 
ana 
Ibid 

lu 

270. 


),  86;  Rankin  v.   Simonds,  27  Ibid. 

Mason  v.  McCampbell,  2  Arkansas, 
Britt  V.  Bradshaw,  18  Ibid.  530. 
Oakey  v.  M.  &  A.  Railroad  Co.,  13 
siana,  570  ;  Blanchard  v.  Vargas,  18 
486  ;  McDowell  v.  Crook,  10  Louisi- 
Annual,  31 ;  Helme  v.  Pollard,  14 
.  306 ;  Barnes  v.  Wayland,  Ibid.  701. 
Williams   v.   Jones,   42   Mississippi, 


'1  Williams   v.  Jones,   42   Mississippi, 


270. 


CHAP.  XXXIII.]       ANSWER   OF   THE   GARNISHEE.  §  654 

or  what  may  be  equivalent,  to  overthrow  it,  but  is  to  be  consid- 
ered as  presenting  a  prima  facie  defence,  liable  to  be  rebutted  by 
preponderating  testimony.^  In  Pennsylvania,  where,  under  the 
statute  of  1789,  the  garnishee  was  held  to  be  chargeable  until  he 
discharged  himself,  at  least  by  his  own  oath,  it  was  considered 
that  the  answer  is  primd  facie  sufficient,  but  that  its  truth  might 
be  inquired  into  by  the  jury  ;  and  that  the  plaintiff  makes  out 
his  case  merely  by  destroying  the  effect  of  the  answer,  unless  the 
garnishee  maintains  the  issue  by  other  satisfactory  evidence  ;  and 
this  the  plaintiff  may  do  by  disproving  the  matter  alleged  in  the 
answer,  or  by  showing  the  garnishee  to  be  utterly  unworthy  of 
credit.  On  this  principle,  evidence  which  falsifies  any  fact  as- 
serted in  the  answer,  goes  to  the  credibility  of  the  garnishee,  and 
is  therefore  competent.^  In  Mississippi,  it  is  ruled  that  where 
the  truth  of  the  answer  is  denied,  it  cannot  be  read  to  the  jury 
impanelled  to  try  the  issue.^  If,  however,  upon  such  a  trial  the 
plaintiff  reads  the  answer  to  the  jury,  it  is  held,  in  Pennsylvania, 
that  it  must  be  taken  as  primd  facie  evidence,  not  requiring  of 
the  garnishee  other  proof  to  establish  it ;  ^  and  in  Alabama,  that 
it  has  the  effect  only  of  an  admission  of  the  garnishee,  and  is 
governed  by  the  same  rules  as  any  other  admission.^  In  Mis- 
souri, the  answer  cuts  no  greater  figure  in  the  trial  than  the  an- 
swer of  a  defendant  in  an  ordinary  suit,  and  it  is  not  necessary 
for  the  plaintiff,  in  order  to  a  recovery,  to  disprove  the  facts  stated 
in  the  answer.^  In  Maryland,  the  answer  is  regarded  not  as  part 
of  the  pleading,  but  as  evidence,  and  if  any  part  of  it  be  read, 
the  whole  must  be ;  as  well  that  which  discharges  as  that 
which  charges  the  garnishee  ;  and  the  whole  is  to  be  received  as 
primd  facie  evidence  of  the  facts  stated  in  it  ;  open,  however,  to 
be  rebutted.'^  In  Illinois,  the  garnishee  is  entitled  to  have  his 
answer  before  the  jury,  who  may  give  it  such  weight  as  they  may 
believe  it  entitled  to,  in  connection  with  all  the  circumstances  of 
the  case.^     But  in  South  Carolina  ^  and  Alabama^*^  the  answer  is 

1  Kergin  v.  Dawson,  6  Illinois  (1  Gil-  «  Smith   v.    Heidecker,  39  Misssouri, 
man),  86.  157. 

2  Adlum  V.  Yard,  1  llawle,  163 ;  Elli-  ■?  Devries  v.  Buchanan,  10  Maryland, 
son  V.  Tuttle,  26  Texas,  283.     Scd  contra  210. 

Barnes  v.  Wayland,  14  Louisiana  Annual,  ^  Schwab  v.  Gingerick,  13  Illinois,  697. 

791.  9  Dawkins    v.    Gault,    5    Richardson, 

3  Lasley  v.   SislofE,  7  Howard   (Mi.),     151. 

157.  10  Hyatt  v.  Lockliart,  9  Alabama,  91 ; 

<  Erskine  v.  Sangston,  7  Watts,  160.         Price  v.  Mazange,  Ml  Ibid.  701;  Sevier  v. 
*  Myatt  V.  Lockhart,  9  Alabama,  91.        Throckmorton,  33  Ibid.  612. 

[557] 


§65G 


ANSWER   OF   THE  GARNISHEE.      [CHAP.  XXXHI. 


not  admissiMe  evitlence  in  the  garnishee's  favor.  And  so  in 
Wisionsin  and  in  the  United  States  District  Court  for  tlie  South- 
ern District  of  New  York.^ 


§  655.  As  to  the  evidence  which  may  be  given  against  the  gar- 
nishee's answer,  it  is  lield,  in  Missouri,  that  his  admissions  in 
conversation,  either  before  or  after  the  answer  is  sworn  to,  are 
admissible  to  disprove  the  statements  of  the  answer.^  And  in  a 
chancery  proceeding  in  Kentucky,  where  the  garnishee,  who  had 
been  agent  and  clerk  of  the  defendant,  had,  before  lie  was  gar- 
nished, frequently  declared  to  the  complainants  that  he  had  a 
suflBciency  in  his  hands  to  pay  their  demand,  and  paid  a  part,  and 
afterwards  put  in  a  partial  and  equivocal  answer,  admitting  that 
he  had  a  sum  in  his  hands,  collected  and  to  be  collected,  but  not 
stating  how  much ;  he  was  charged  for  the  whole  amount  of  the 
complainant's  demand.^  In  Massachusetts,  on  tiie  contrary,  in 
the  cases  previously  referred  to,^  it  was  decided,  that  what  the 
garnishee  might  have  told  other  persons,  or  said,  on  former  occa- 
sions, is  immaterial,  and  the  garnishee  could  not  be  questioned 
in  regard  thereto.  It  is  quite  certain,  however,  that  declara- 
tions of  the  defendant  are  not  admissible  in  evidence  for  the 
plaintiff  against  the  garnishee ;  ^  nor,  when  made  after  the  gar- 
nishment, are  they  evidence  in  his  favor ;  ^  nor  are  admissions  by 
an  agent  of  the  garnishee  evidence  against  the  latter.^  But  what- 
ever evidence  may  be  given  to  controvert  his  answer,  must  go  to 
disprove  the  facts  therein  stated.  It  is  not  admissible  for  the 
plaintiif  to  assail  the  answer  by  impeaching  the  garnishee's  cred- 
ibility.^ 

§  656.  V.  The  Construction  to  he  given  to  the  Garnishee'' s  An- 
swer. The  necessity  of  fulness  and  explicitness  in  the  garnishee's 
answer,  previously  adverted  to,  is  illustrated  and  enforced  by  the 


1  Keep  V.  Sanderson,  12  Wisconsin, 
352 ;  Cusliing  v.  Laird,  ti  Benedict,  408. 

■■^  Stevens  v.  Gvvatliiney,  9  Missouri, 
636.  See  Carroll  v.  Finley,  26  Barbour, 
61 ;  McKee  v.  Anderson,  S5  Indiana,  17. 

3  Keel  V.  Ogden,  5  Monroe,  862. 

*  Grossman  v.  Grossman,  21  Pick.  21 ; 
Warner  v.  Perkins,  8  Gushing,  518 ; 
Ante,  §  643. 

5  Enos  V.  Tuttle,  3  Conn.  27  ;  Gaboon 
V.  Ellis,  18  Vermont,  500.  And  in  Mary- 
[558] 


land  tbe  garnishee  cannot,  to  discharge 
biniselt',  give  in  evidence  the  declara- 
tions and  admissions  of  the  defendant. 
Tliomas  V.  Price,  30  Maryland,  483. 

*>  Warren  v.  Moore,  52  Georgia,  562. 

7  Baltimore  &  Ohio  K.  R.  Go.  v.  Gal- 
lahue,  12  Grattan,  655. 

**  Barnes  v.  Way  land,  14  Louisiana 
Annual,  791.  iSed  contra  Adlum  v.  Yard, 
1  Kawle,  163. 


CHAP.  XXXIII.]      ANSWER   OF   THE   GARNISHEE. 


656 


rule  which  has  obtained  in  Massachusetts,  in  relation  to  doubtful 
expressions  contained  in  an  answer.  We  will  trace  the  rise  and 
progress  of  this  rule. 

The  matter  came  up  at  an  early  dajs  in  a  case  where  the  lia- 
bility of  the  garnishee  turned  on  the  point  whether  a  draft  drawn 
on  and  accepted  by  him,  in  favor  of  the  defendant,  was  negoti- 
able. If  it  was,  he  could  not,  under  the  statute,  be  charged ;  oth- 
erwise he  could.  In  his  answer  he  stated  his  acceptance  of  the 
draft,  and  that  he  tliouglit  it  was  payable  to  the  defendant  or  order. 
"  But,"  said  the  court,  "  he  must  be  positive  as  to  this  fact.  He 
has  had  time  to  inquire,  and  he  does  not  move  the  court  for  leave 
to  make  any  further  declaration  on  this  point.  If  he,  in  whose 
knowledge  the  fact  ought  to  be,  is  doubtful,  the  court  cannot 
make  any  presumption  in  his  favor."  ^  In  the  next  case  the  court 
go  a  step  further,  and  say,  "  If  the  statement  in  any  part  be 
doubtful,  we  must  construe  it  against  the  trustee,  who  might 
have  used  expressions  in  which  there  should  be  no  doubt."  ^ 
Again  the  court  say,  ''  The  answer  of  a  trustee  being  his  own 
language,  must  unquestionably  in  all  cases  be  construed  most 
strongly  against  himself.  But  his  language  is  not  to  be  distorted 
nor  forced  into  any  unnatural  construction  ;  nor  can  inferences 
be  drawn  from  any  real  or  supposed  discrepancies  in  his  answers, 
against  the  fair  and  natural  import  of  the  language  taken  alto- 
gether." 2  The  rules  laid  down  in  these  cases  were  applied  by 
the  same  court  to  a  case  where  the  question  of  the  garnishee's 
liability  turned  on  a  statement  in  his  answer  with  regard  to  the 
disposition  made  of  certain  provisions,  the  most  of  which,  he  said, 
had  been  consumed  in  a  particular  way.  If  they  had  all  been 
so  consumed,  the  garnishee  would  not  be  charged ;  otherwise  he 
might  be.  The  court  adjudged  him  liable,  because  he  did  not 
answer  with  sufficient  precision,  when  it  was  in  his  power  to  have 
done  so."*  Subsequently,  the  rule  was  Hmited  in  its  application 
to  cases  where  tlie  garnishee,  in  some  part  of  his  answer,  makes 
statements,  whicli,  unexplained,  would  prltad  facie  subject  him 
to  liability.^     The  last  case  cited  seems  to  be  one  of  this  charac- 

1  Sebor  v.  Armstrong,  4  Mass.  206.  Sampson  v.  Hyde,  16  Ibid.  492  ;  Scott  v. 

'i  Cleveland   v.    Clap,   5    Mass.    201;  Kay,  la  Pick.  360 ;  Onnsbee  <;.  Davis,  5 

Sampson  v.  Hyde,  16  New  Hamp.  492.  Kliode  Island,  442. 

»  Kelly    V.   Bowman,    12    Pick.    888 ;  ^  Graves  o.  Walker,  21  Pick.  160. 

United  States  v.  Langton,  5  Mason,  280;  ^  Shearer  v.  Handy,  22  Pick.  417. 

Gidditigs  V.  Coleman,  12  New  Hamp.  153; 

[559] 


§  658  ANSWER   OF   THE   GARNISHEE.       [CHAP.  XXXIII. 

ter.  There,  the  garnishee  was  primd  facie  liable,  and  endeavored 
to  avoid  liability  by  a  statement  concerning  the  provisions  in  his 
hands.  That  statement  being  deficient  in  precision  and  fulness, 
the  court  would  not  receive  it  as  a  protection  against  the  primd 
facie  liability  appearing  by  the  answer. 

§  G57.  In  Louisiana,  a  statutory  provision  exists,  declaring  that 
a  garnishee's  "  refusal  or  neglect  to  answer  interrogatories  shall 
be  considered  as  a  confession  of  his  liaving  in  his  hands  prop- 
erty belonging  to  the  debtor,  sufficient  to  satisfy  the  demand 
made  against  this  debtor."  Under  this  provision  this  question 
was  put  to  the  garnishee,  "  Have  you  received  cotton  or  other 
produce  from  the  defendants  or  from  any  member  of  the  firm? 
At  what  time?  How  much  cotton  or  produce?"  The  gar- 
nishee answered,  "  that  he  had  received  cotton  from  the  de- 
fendants, for  account  of  other  persons,  which  had  been  duly 
appropriated  according  to  directions  received  with  said  cotton, 
previous  to  the  service  of  the  attachment  or  garnishment  in  this 
case."  The  answer  was  held  to  be  evasive,  and  not  responsive 
to  the  question,  and  the  garnishee  was  charged.^  But  though 
the  answer  to  one  of  several  interrogatories  be  not  full  and  ex- 
plicit, yet  if  it  be,  in  fact,  explicitly  answered  by  the  answers 
given  to  other  interrogatories,  that  is  sufficient.^ 

§  658.  This  subject  elicited  from  the  late  Justice  Story  the 
following  judicious  remarks,  which,  though  applicable  to  the  pe- 
culiar system  of  Maine,  will  be  regarded  favorably  in  all  cases 
where  the  question  of  the  garnishee's  liability  is  to  be  decided  by 
the  terms  of  his  answer :  "  It  is  said  that  where  parties,  sum- 
moned as  trustees,  fail  to  discharge  themselves,  by  any  ambiguity 
in  their  disclosures,  they  are  to  be  adjudged  trustees.  That  prop- 
osition requires  many  qualifications,  and  may  be  true  or  not,  ac- 
cording to  circumstances.  If  upon  the  disclosure  it  is  clear  that 
there  are  goods,  effects,  or  credits  of  the  debtor  in  the  hands  of  a 
trustee,  but  it  is  left  uncertain  by  the  disclosure  whether  the 
goods,  effects,  or  credits  are  affected  by  interests,  liens,  or  claims 
of  third  persons  or  not,  and  the  trustee  has  knowledge  of  all  the 
facts,  and  withholds  them,  or  evades  a  full  examination  ;  that 

1  Hart    V.   Dahlgreen,   16    Louisiana,  -  Maduel   v.  Mousscaux,  28  Louisiana 

559.  Annual,  byi. 

[560] 


CHAP.  XXXIII.]       ANSWER   OF   THE   GARNISHEE. 


658 


may  furnish  a  good  ground  to  presume  every  thing  against  him, 
so  far  as  there  are  ambiguities.  But  if  he  fully  and  clearly  dis- 
closes all  he  knows,  and  upon  the  whole  evidence  it  is  left  in 
reasonable  doubt  whether,  under  all  the  circumstances,  he  be 
trustee  or  not  ;  in  such  case,  I  apprehend,  he  is  entitled  to  be 
discharged.  A  different  doctrine  would  be  most  perilous  to  the 
supposed  trustee ;  because  he  possesses  no  power  to  compel  disclo- 
sures from  third  persons  relative  to  the  property  ;  and  no  extrane- 
ous or  collateral  evidence  of  third  persons  is  admissible  in  the  suit, 
to  establish  or  discharge  his  liabihty.  It  is  to  be  decided  solely 
and  exclusively  by  his  answer.  He  might,  upon  any  other  doctrine, 
be  innocently  compelled  to  pay  over  the  same  property  twice  to 
different  persons  holding  adverse  rights,  because  he  might  be 
without  any  adequate  means  of  self-protection.  The  law,  there- 
fore, will  not  adjudge  him  a  trustee,  except  upon  clear  and  de- 
terminate evidence  drawn  from  his  own  answers."  ^  In  another 
case  the  same  eminent  jurist  said :  "  I  agree  that  doubtful  ex- 
pressions may  be  construed  most  strongly  against  the  trustees,  if 
they  admit  of  two  interpretations  ;  but  they  are  not  to  be  tor- 
tured into  an  adverse  meaning  or  admission.  The  answers  are 
not  to  be  more  rigidly,  or  differently  construed  from  what  they 
would  be  in  a  bill  in  chancery.  If  the  answers  are  not  full,  the 
plaintiff  is  at  liberty  to  propound  closer  interrogatories  ;  but  he 
is  not  to  charge  parties  upon  a  mere  slip  or  mistake  of  certainty, 
or  because  they  do  not  positively  answer,  what  in  conscience  they 
do  not  positively  know."  ^ 

1  Gordon  v.  Coolidge,  1  Sumner,  537. 

2  United  States  v.  Langton,  5  Mason,  280. 

[561] 


36 


§  658  a        JUDGMENT   AGAINST   THE   GABNISHEE.    [CHAP.  XXXIV. 


CHAPTER    XXXIV. 

JUDGMENT   AGAINST   THE   GARNISHEE. 

§  658  a.  We  have  seen  that  an  indispensable  prerequisite  to  a 
judgment  against  the  garnishee  is  the  rendition  of  a  judgment 
against  the  defendant.^  There  is  no  doubt  that  that  fact  shoukl 
be  shown  in  the  record ;  else  the  judgment  against  the  garnishee 
will  appear  without  foundation.^  But  the  question  arises,  What 
constitutes  the  record  in  a  garnishment  proceeding  ?  and  this 
depends  upon  the  manner  in  which  that  proceeding  is  instituted. 
If  the  garnishee  is  summoned  under  an  attachment,  the  true 
view  seems  to  be,  that  the  garnishment,  though  in  some  sense  a 
distinct  suit,  belongs  to,  and  is  a  part  of,  the  record  in  the  at- 
tachment suit.^  But  there  are  two  other  modes  in  which  gar- 
nishees may  be  summoned  in  courts  of  law,  viz.:  1.  By  a  statutory 
proceeding  under  a  judgment,  but  not  under  an  execution  on  the 
judgment ;  and  2.  By  a  statutory  proceeding  under  an  execution. 
In  the  former,  there  is  necessarily  some  step  to  be  taken  by  the 
judgment  plaintiff,  to  initiate  the  garnishment  ;  in  the  latter, 
there  is  generally  nothing  required  but  the  issue  of  an  execu- 
tion, under  which  garnishees  may  be  summoned,  as  under  an 
attachment.  In  the  latter  form  of  proceeding,  the  record  of  the 
case  against  the  garnishee  is  the  execution,  the  return  of  the  offi- 
cer thereon,  the  interrogatories  to,  and  answer  of,  the  garnishee, 
and  the  judgment ;  and  in  such  a  record  the  date  and  amount  of 
the  judgment  against  the  defendant  necessarily  and  sufficiently 
appear  by  the  execution.     But  in  the  other  case,  how  is  the  fact 

1  Ante,  §  460.  exceptions,  nor   by   any  order   of  court 

-  Zurcher  v.  Magee,  2  Alabama,  253 ;  made  a  part  of  the  record,  but  was  yet 

Blair   v.   Rhodes,    5   Ibid.    618;  Case   v.  referred  to  and  identified  in  the  judgment 

Moore,  21  Ibid.  758;  Bean  v.  Barney,  10  entry,  should  be  treated  as  part  of  the 

Iowa,  498 ;  Toll  v.  Knight,  15  Ibid.  370.  record.     In  Rankin  v.   Simonds,  27  Illi- 

3  Faulks  V.  Heard,   31  Alabama,  516.  nois,  352,  it  was  held,  that  the  interroga- 

See   Wyman   v.    Stewart,   42    Alabama,  tories  to,  and  answer  of,   the  garnishee 

163,  where  it  was  held,  that  the  answer,  are  part  of  the  record,  and  need  not  be 

although  not  made  a  part  of  the  bill  of  preserved  by  a  bill  of  exceptions. 

[562] 


CHAP.  XXXIV.]    JUDGMENT    AGAINST   THE   GARNISHEE.         §  658  « 

of  the  rendition  of  the  judgment,  or  the  amount  thereof,  to  ap- 
pear? In  Tennessee,  in  a  contest  between  a  garnishment  under 
a  proceeding  by  attachment  in  equity,  and  a  garnishment  under 
an  execution,  it  was  held,  that  the  neglect  to  file  a  certified  copy 
of  the  judgment  upon  which  the  execution  issued,  was  a  fatal 
omission  ;  from  which  holding  it  is  inferable  that  it  would  have 
been  sufficient  to  produce  such  copy.^  In  Alabama,  in  such  case, 
it  is  necessary  for  the  judgment  plaintiff,  in  order  "  to  obtain 
process  of  garnishment  against  any  person  supposed  to  be  in- 
debted to  the  defendant,  in  any  cause  wliere  execution  cannot  issue 
on  the  judgment.,  to  make  affidavit  that  such  person  is  supposed 
to  be  indebted  to,  or  have  effects  of  the  defendant  in  his  posses- 
sion or  under  his  control,  and  that  he  believes  process  of  garnish- 
ment against  such  person  is  necessary  to  obtain  satisfaction  of 
such  judgment."  The  record  in  such  a  case  would  consist  of  the 
afl&davit  and  summons,  tlie  return  of  the  officer,  and.  the  inter- 
rogatories, answer,  and  judgment  in  the  garnishment  proceed- 
ing. The  judgment  against  the  defendant  is,  properly  speaking, 
no  portion  of  the  record,  unless  incorporated  into  the  judgment 
against  the  garnishee,  or  made  part  of  the  record  by  a  bill  of 
exceptions.^  Indeed,  it  was  held,  that  a  judgment  against  the 
garnishee  in  such  a  proceeding  was  fatally  defective,  because  it 
did  not  recite  the  amount  of  the  judgment  against  the  defend- 
ant;^ but  this,  perhaps,  is  more  strict  than  necessary.  It  should 
be  enough  if,  in  any  way,  in  the  lecord  of  the  garnishment  pro- 
ceeding, the  amount  of  that  judgment  appears.  And  this  was 
the  view  taken  by  the  Supreme  Court  of  Alabama,  where  the 
affidavit  set  forth  the  date  and  amount  of  the  judgment  against 
the  defendant,  and  the  judgment  entry  against  the  garnishee 
recited  that  he  waived  objection  to  the  rendition  of  a  judgment 
against  him,  because  of  its  not  appearing,  as  required  by  the 
terms  of  the  statute  above  quoted,  that  no  execution  could  issue 
on  the  judgment  against  the  defendant.  The  court  held,  that  his 
admission,  contained  in  this  waiver  and  his  answer,  was  an  ad- 
mission of  the  existence  of  the  judgment  described  in  the  affida- 
vit, and  was  sufficient  proof,  as  against  him,  of  that  fact.*     But, 

1  Alley  V.   Myers,  2  Tennessee  Ch'y,  ^  Faiilks  v.  Heard,  31  Alabama,  516; 
206.  Chambers  (•.  Yarnell,  37  Ibid.  400. 

2  Gunn  V.  Howell,  27  Alabama,  6G3;  *  Jackson    v.    ISliipmau,  28  Alabama, 
Faulks  V.  Heard,  31  Ibid.  516 ;  Gould  v.  488. 

Meyer,  36  Ibid.  565. 

[563] 


§  658  bh       JUDGMENT   AGAINST   THE   GARNISHEE.    [CHAP.  XXXIV. 

Avhere,  in  such  a  proceeding,  the  affidavit  did  not  show  the  amount 
of  the  judgment  against  the  defendant,  it  was  held,  that  any  judg- 
ment against  the  garnishee  was  erroneous.^ 

§  658  5.  It  is  not  necessary,  unless  required  by  statute,  that 
the  judgment  against  the  garnishee  should  he  taken  at  the  time 
of  tliat  against  the  defendant.  Forbearance  of  the  ^)laintiff  to 
take  it  then,  is  no  waiver  of  his  right  to  do  so  afterward.^  In 
Alabama  it  is  held,  that  when  a  garnishee  submits  to  answer,  he 
continues  before  the  court,  for  the  purpose  of  receiving  its  judg- 
ment upon  his  answer,  until  after  judgment  shall  have  been 
rendered  against  the  defendant  ;^  and  that  judgment  may  be  ren- 
dered against  the  garnishee  at  a  term  subsequent  to  that  at  which 
it  was  given  against  the  defendant  ;  *  and  tliat  in  such  case,  the 
garnishee  is  not  entitled  to  notice  of  the  motion  for  the  judg- 
ment.^ And  in  Louisiana,  in  a  case  where  the  garnishee's  answer 
had  been  suffered  to  remain  six  j^ears  without  any  proceeding 
upon  it,  it  was  not  regarded  as  releasing  the  garnishee  from  the 
jurisdiction  of  the  court,  but,  coupled  with  other  facts,  as  having 
great  weight  with  the  court  in  relieving  him  against  any  pro- 
ceedings which  might  be  hard  or  precipitate  against  him.^  And 
in  the  Philadelphia  District  Court  it  was  ruled,  that  an  attach- 
ment should  not  be  dissolved  because  of  the  lapse  of  fourteen 
years  after  the  judgment,  without  the  plaintiff's  taking  out  a 
scire  facias  against  the  garnishee.'^ 

§  658  bb.  The  death  of  a  garnishee,  after  his  answer,  arrests 
all  proceedings  as  to  him,  and  a  judgment  rendered  against  him 
then  is  erroneous.  Though  the  garnishee's  death  will  have  no 
effect  upon  the  main  action,  yet  no  further  proceeding  can  be 
had  except  against  his  personal  representative ;  which  may  be 
done  by  scire  facias  if  no  other  statutory  mode  be  prescribed.    If 

1  Stickley  v.  Little,  29  Illinois,  315.  nual,  567.     The  failure  of  an  attaching 

2  Sturges  V.  Kendall,  2  Louisiana  An-  plaintiff,  for  many  years,  to  prosecute 
nual,  565;  riiillips  y.  Gerraon,  43  Iowa,  a  garnishment  proceeding  to  judgment 
101.  against  the  garnishee,  and  the  interven- 

s  Graves  v.  Cooper,  8  Alabama,  811  ;  ing  insolvency  of  the  garnishee,  do  not 
Lockhart  y.  Jolmson,  9  Ibid.  223;  Bost-  deprive  the  plaintiff  of  his  right  to  prose- 
wick  V.  Beach,  18  Ibid.  80.  cuie  his  claim  agamst  the  defendant  to 

*  Leigh   V.   Smith,   5   Alabama,    683;  judgment.     Noble  v.  Merrill,  48  Maine, 

Robinson  v.  Starr,  3  Stewart,  90.  140. 

5  Leigh  V.  Smith,  5  Alabama,  583.  ^  Weber   v.    Carter,    1    Philadelphia, 

fi  Slalter  v.  Tiernan,  6  Louisiana  An-  221, 

[564] 


CHAP.  XXXIY.]    JUDGMENT   AGAINST   THE   GARNISHEE.        §  658  d 

the  garnishee,  at  his  death,  had  in  his  hands  specific  chattels 
belonging-  to  the  defendant,  which  go  into  the  hands  of  his  rep- 
resentative, the  court  may  compel  them  to  be  delivered  up  for 
application  to  the  plaintiff's  judgment  when  recovered. ^ 

§  658  c.  When  in  an  attachment  suit,  the  question  arises 
whether  there  shall  be  a  judgment  against  the  garnishee,  the 
case  is  ordinarily  between  him  and  the  plaintiff  alone  ;  but  the 
defendant  is  not  Avholly  cut  off  from  interfering  to  prevent 
the  judgment.  If  his  property  in  the  garnishee's  hands  is  by 
law  exempt  from  execution  ;  ^  or  if  the  attachment  has  been  dis- 
solved by  the  defendant's  giving  bail;^  or  if  the  debt  due  from 
the  garnishee  to  him  be  such  as  the  law  forbids  being  reached  by 
garnishment;  or  if  the  judgment  against  the  defendant  has  been 
satisfied;  he  may  interpose  to  prevent  a  judgment  against  the 
garnishee.  But  he  cannot  do  so  to  set  up,  on  behalf  of  the  lat- 
ter, a  personal  exemption  from  garnishment ;  this  can  be  done 
onl}'  by  the  garnishee.  Thus,  where  an  incorporated  city  was 
garnished,  and  the  defendant  attempted  to  interpose  the  objec- 
tion that  a  municipal  corporation  could  not  be  held  as  garnishee, 
it  "was  decided  that  he  had  no  right  to  do  so.'*  Nor  can  he  move 
to  discharge  the  garnishee  on  account  of  jurisdictional  defect  in 
the  writ  under  which  the  garnishee  was  summoned,  when  the 
defect  had  been  amended  with  his  consent  and  that  of  the  gar- 
nishee.^ 

§  658  d.  Nothing  is  more  important  in  the  taking  of  a  judgment 
against  a  garnishee,  than  that  he  should  have  a  fair  hearing  be- 
fore the  court  on  the  question  of  his  liability.  If  that  be  denied 
him,  the  judgment  against  him  will  be  reversed  by  the  revising 
tribunal.  Thus,  where  a  garnishee,  on  an  examination  before  a 
commissioner,  refused  to  answer  a  certain  interrogatory,  on  the 
ground  that  it  was  impertinent,  and  the  question  was  submitted 
to  the  court  whether  he  was  legally  bound  to  answer,  and  the 
court  decided  that  he  was,  but  refused  to  permit  him,  though  he 
offered  to  do  so,  and  rendered  judgment  against  him  ;  the  judg- 
ment was  reversed,  on  the  ground  that  it  was  the  duty  of  the 

1  Parker  v.  Parker,  2  Hill  Cli'y,  35.  *  Wales  v.  Muscatine,  4   Iowa,    302 ; 

-  Wigwall  V.  Union  C.  &  M.  Co.,  37  Burton  v.  District  Township,  11  Ibid. 
Iowa,  129.  IGG. 

i  Myers  v.  Smitli,  20  Ohio  State,  120.  ^  Barry  v.  Hogan,  110  Mass.  209. 

[565] 


§  658  e        JUDGIMENT   AGAINST   THE   GAENTSHEE.    [CHAP.  XXXIV. 

court  citlipr  to  have  recommitted  flie  wliole  matter  to  the  cora- 
missiouer  for  further  investigation,  or  to  have  taken  the  answer 
in  open  court.^ 

§  658  e.  In  many  States,  a  judif^ment  Iiy  default  may  be  taken 
apfainst  a  o^arnisliee  upon  his  failing  to  answer.  If  he  permit 
such  a  judgment,  when  in  fact  he  ought  not  to  he  charged,  be- 
cause not  a  debtor  to,  or  holding  any  effects  of,  the  defendant,  he 
is  primd  fdcie  guilty  of  negligence,  and  can  obtain  no  relief,  un- 
less, by  rebutting  the  presumption  of  negligence,  he  can  induce 
the  court  to  set  aside  the  judgment,  and  give  him  leave  to  answer. 
It  is  not  such  a  case  as  a  court  of  equity  will  interfere  in,  though 
he  show  that  the  judgment  is  inequitable.  To  entitle  himself  to 
equitable  relief,  he  must  not  only  show  that  injustice  has  been 
done  him  by  the  judgment,  but  that  the  judgment  was  obtained 
without  any  fault  or  neglect  on  his  part.^ 

When  a  garnishee  in  default  comes  into  court,  seeking  to  be 
allowed  to  answer,  the  default  Avill  not  be  set  aside  unless  he 
show  a  sufficient  excuse  for  his  failure  to  appear  and  answer  at 
the  proper  time.  He  cannot  carelessly  or  obstinately  fail  to  ap- 
pear when  required,  and  afterwards  come  in  and  enter  his 
appearance,  with  all  the  rights  and  privileges  of  one  who  has 
been  diligent  in  responding  in  the  first  instance.  A  negligent 
garnishee  is  no  more  entitled  to  protection  than  any  other  negli- 
gent party .^  And  he  is  as  much  bound  to  look  after  the  proceed- 
ings against  him,  and  protect  himself  from  an  improper  judgment, 
as  a  defendant  in  an  ordinary  suit  is.  If,  b}*  his  failure  in  this 
respect,  the  plaintiff  gain  an  advantage  over  him,  he  is  without 
relief.  Tlius,  where  a  garnishee  answered,  den^dng  indebtedness 
to  the  defendant,  and  afterwards  the  case  was  taken  by  change 
of  venue  to  another  county,  where  the  plaintiff  filed  a  replication 
to  the  answer  taking  issue  thereon,  of  which  no  notice  was  given 
the  garnishee,  and  upon  a  trial  a  verdict  was  found  against  the 
garnishee,  which  he  moved  to  set  aside ;  it  was  held,  that  it  was 

1  Sawyer  v.  Webb,  5  Iowa,  315.  ^  pifield  v.  Wood,  9  Iowa,  250 ;  Par- 

2  Hair  v.  Lowe,  19  Alabama,  224;  menter  v.  Childs,  12  Ibid.  22;  Willet  u. 
Peters  v.  League,  13  Maryland,  58 ;  Price,  32  Georgia,  115 ;  Frtidenrich  v. 
Windwart  v.  Allen,  Ibid.  190;  Atlantic  M.'ore,  24  Maryland,  295;  Anderson  v. 
F.  &  M.  Ins.  Co.  V.  Wilson,  5  Rhode  Graff,  41  Ibid.  601 ;  Lawrence  v.  Smith, 
Island,  47!) ;  Rhode  Island  Ex.  Bank  v.  45  New  Hamp.  533. 

Hawkins,  6  Ibid.  108 ;  Danaher  v.  Pren- 
tiss, 22  Wisconsin,  311. 

[506] 


CHAP.  XXXIV.]    JUDGMENT   AGAINST   THE   GARNISHEE.         §  658/ 

his  duty  to  take  notice  of  what  was  done  in  the  case,  the  same  as 
any  other  party,  and  to  follow  the  case  ;  and  being  in  default  in 
this  respect,  the  judgment  against  him  could  not  be  set  aside.^ 

In  Louisiana,  if  a  garnishee  fails  to  answer  the  interrogatories 
propounded  to  him,  the  court  orders  them  to  be  taken  for  con- 
fessed ;  and  under  this  system  of  practice  it  was  held,  that  such 
an  order  might,  in  the  sound  discretion  of  the  court,  be  set  aside, 
and  the  garnishee  be  allowed  to  answer,  where  the  order  was 
made  before  judgment  was  obtained  against  the  defendant;  inas- 
much as,  until  that  event,  the  taking  of  the  interrogatories  for 
confessed  could  be  of  no  benefit  to  the  plaintiff.^ 

In  Illinois  it  was  held,  that  a  refusal  by  the  court  to  set  aside 
a  judgment  by  default  against  a  garnishee,  will  not  be  reviewed 
by  the  appellate  court ;  ^  and  in  Georgia,  that  the  discretion  of  a 
court  in  setting  aside  such  a  judgment  will  not  be  reviewed, 
where  it  appeared  that  the  garnishee  was  charged  for  more  than 
he  actually  owed  the  defendant,  and  that  in  not  answering  he 
acted  under  a  mistake  of  his  legal  duty,  and  not  in  bad  faith.* 
But  if  the  garnishee  is  led  by  the  plaintiff's  conduct  to  believe 
that  the  garnishment  was  no  longer  to  be  pressed  against  him, 
and  he  therefore  does  not  answer,  a  judgment  by  default  against 
him  will  be  set  aside. ^ 

§  658  /.  A  garnishee  in  default  is  as  much  entitled  as  a 
defendant  would  be  to  a  strict  observance  of  the  steps  prescribed 
by  law  as  preliminary  to  a  final  judgment  against  him.  Thus, 
under  a  statute  which  provided  that  ''if  the  garnishee  fail  to 
appear  and  answer,  a  conditional  judgment  must  be  rendered 
against  him  for  the  amount  of  the  plaintiff's  claim,  as  ascertained 
by  the  judgment,  to  be  made  absolute  if  he  does  not  appear 
within  the  first  three  days  of  the  next  term  and  answer,"  a  final 
judgment  against  the  garnishee  was  reversed  because  no  condi- 
tional judgment  was  entered,  though  at  the  end  of  the  record  en- 
try of  the  judgment  against  the  defendant  these  words  were 
added :  "  Judgment  7iisi  as  to  John  T.  Bonner  and  other  gar- 
nishees, answer  on  file,  and  cont'd."     These  words  were  held  not 

1  Chase  v.  Foster,  9  Iowa,  429.  *  Russell  v.  Freednien's  Savings  Bank, 

2  Rose  V  Wliiiley,  14  Louisiana  An-     60  Georgia,  575. 

nual,  374.  *  Platen  v.  Byck,  50  Georgia,  245, 

3  United  States  Express   Co.  v.  Bed- 
bury,  134  Illinois,  459. 

[567] 


§  659  JUDGMENT    AGAINST   THE   GARNISHEE.     [CHAP.  XXXIV. 

to  amount  to  a  judgment  at  all.^  And  wliere  the  law  required 
that,  in  order  to  obtain  a  writ  of  garnishment  under  a  judgment, 
an  affidavit  should  be  filed  ;  and  a  writ  was  issued  without  the 
required  affidavit;  and  the  writ  recited  the  judgment  as  for 
$220.87,  when,  in  fact,  it  was  for  $2,020.87 ;  and  judgment  by 
default  was  taken  against  the  garnishee  for  the  latter  sum  ;  it 
was  set  aside  because  the  plaintiff  could  take  such  judgment  for 
no  more  than  the  amount  specified  in  the  writ ;  and  the  writ  was 
quashed  because  there  was  no  affidavit.^ 

§  659.  Where  the  garnishee's  liability  is  to  be  determined  by 
his  answer,  either  because  it  is  by  law  conclusive,  or  because  the 
plaintiff  does  not  see  proper  to  controvert  its  statements,  the 
rules  governing  the  judgment  to  be  rendered  thereon  are  few  and 
simple.     They  may  be  briefly  stated  thus : 

1.  In  order  to  charge  the  garnishee  on  his  answer,  there  must 
be  in  it  a  clear  admission  of  a  debt  due  to,  or  the  possession  of 
money  or  other  attachable  property  of,  the  defendant.^ 

2.  Where  there  is  not  an  explicit  admission  of  a  debt,  but, 
from  the  statements  of  the  answer,  indebtedness  to,  or  the  pos- 
session of  attachable  property  of,  the  defendant,  clearly  appears, 
judgment  should  go  against  the  garnishee.*  And  in  arriving  at 
the  facts,  the  plain  and  natural  import  of  the  language  of  the  an- 
swer, taken  together,  must  control,  and  the  garnishee  is  to  be 

1  Bonner  v.  Martin,  37  Alabama,  83  ;  bright,  2  G.  Greene,  125 ;  Pierce  v.  Carle- 
Goode  V.  Holcombe,  Ibid.  94.  See  John-  ton,  12  IlUnois,  358 ;  People  v.  Jolinson, 
son  V.  McCutchings,  43  Texas,  553.  14   Ibid.    342;  Bliss   v.    Smith,  78    Ibid. 

2  Hotfman  v.  Simon,  52  Mississippi,  359;  Cairo  &  St.  L.  R.  K.  Co.  v.  Killen- 
302.  berg,  82  Ibid.  295 ;  Ellicott  v.  Smith,  2 

3  Wetherill  v.  Flanagan,  2  Miles,  243 ;  Craneh  C.  C.  543  ;  Porter  v.  Stevens,  9 
Bridges  I!.  North,  22  Georgia,  52;  Tliomp-  Gushing,  530;  Lomerson  v.  Huffman, 
son  I'.  Fischesser,  45  Ibid.  369 ;  Allen  v.  1  Dutciier,  625  ;  Williams  v.  Housel,  2 
Morgan,  1  Stewart,  9  ;  Pressnall  v.  Mabry,  Iowa,  154  ;  Hunt  v.  Coon,  9  Indiana,  537  ; 
3  Porter,  105  ;  Smith  i;.  Chapman,  6  Ibid.  Reagan  y.  Pacific  Railroad,  21  Missouri, 
365;  Minis  v.  Parker,  1  Alabama,  421 ;  80;  Driscoll  v.  Hoyt,  11  Gray,  404; 
Foster  v.  Walker,  2  Ibid.  177;  Fortune  Smith  v.  Clarke,  9  Iowa,  241;  Morse  v. 
V.  State  Bank,  4  Ibid.  385 ;  Connoley  v.  Marshall,  22  Ibid.  290 ;  Church  v.  Simp- 
Cheeseborough,  21  Ibid.  166;  Powell  v.  son,  25  Ibid.  408;  Fitliian  v.  Brooks,  1 
Sammons,  31  Ibid.  552  ;  Estill  y.  Goodloe,  Philadelpliia,  2G0;  Allegheny  Savings 
6  Louisiana  Annual,  122 ;  Coe  v.  Rocha,  Bank  u.  Meyer,  59  Penn.  State,  361  ; 
22  Ibid.  590  ;  Harney  v.  Ellis,  11  Smedes  Pickler  v.  Rainey,  4  Heiskell,  335. 

&    Marshall,    348;    Brown    v.    Slate,    7  *  Baker  v.   Moody,  1   Alabama,  315; 

Humphreys,    112;    Lorman    v.    Phcsnix  Mann  y.  Buford,  3  Ibid.  312;  Pickler  v. 

Ins.  Co.,  33  Michigan,  65;  Davis  t;.  Paw-  Rainey,   4    Heiskell,   335;    Donnelly   v. 

lette,  3   Wisconsin,  300 ;    Wilson    •;.  Al-  O'Cjnnor,  22  Minnesota,  309. 
[568] 


CHAP.  XXXIV.]    JUDGMENT   AGAINST   THE   GARNISHEE.  §  659 

charged  or  not,  according  as  the  evidence  afforded  by  the  whole 
answer  preponderates.^ 

3.  If  there  be  a  debt  due  from  the  garnishee,  or  money  in  his 
hands,  the  amount  of  either  will  determine  the  extent  of  the  gar- 
nishee's liability ;  not  exceeding  in  any  case  the  amount  for 
which  the  plaintiff  recovers  judgment  against  the  defendant.^ 

4.  If  the  garnishee  have  property  other  than  money,  or  have 
rendered  services  for  the  defendant,  the  value  thereof,  in  either 
case,  must  appear  in  the  answer,  or  there  can  be  no  judgment  for 
the  plaintiff  on  the  answer ;  for  there  is  nothing  from  which  the 
court  could  find  a  definite  amount.^ 

5.  Where  the  garnishee  denies  being  indebted  to,  or  having  in 
his  possession  attachable  property  of,  the  defendant ;  *  or  his  an- 
swer, though  vague  and  inartificially  drawn,  contains  substantially 
a  denial  thereof;^  judgment  must  be  rendered  in  his  favor,  unless, 
from  the  statements  of  the  answer,  it  appear  that  the  denial  is  un- 
true; in  which  case  the  denial  will  be  disregarded  and  judgment 
rendered    against   him.^ 

6.  Where  he  neither  expressly  admits  nor  denies  his  liability, 
but  states  all  the  facts,  and  leaves  the  court  to  decide  the  matter 
of  law  arising  thereon,  there  can  be  no  judgment  against  him, 
unless  there  clearly  appear  on  the  face  of  those  facts  sufficient  to 
justify  the  court  in  pronouncing  such  judgment.'^  If  it  be  left  in 
reasonable  doubt  whether  he  is  chargeable  or  not,  he  is  entitled 
to  a  judgment  in  his  favor.^ 

7.  Where  the  answer  of  the  garnishee  discloses  circumstances 
which  raise  a  question  of  fraud  in  the  title  to  property  in  his 
hands,  the  court  will  not  take   cognizance  of,  and  decide  that 


1  Cardany  v.  N.  E.  Furniture  Co.,  107  ^  Wright  v.  Foord,  5  New  Hamp.  178; 
Mass.  116.  Ferine  v.  George,  5  Alabama,  041;  Bebb 

2  Hitchcock    V.   Watson,    18    Illinois,  v.  Preston,  1  Iowa,  460. 

289;  Talbott  v.  Tariton,  5  J.  J.  Marshall,  '^  United  States  v.  Langton,  5  Mason, 

641;  Wilcox  v.  Mills,  4  Mass.  218 ;  San-  280;    Picquet   v.    Swan,   4   Mason,   443; 

ford  f.  Bliss,   12  Pick.  116  ;  Meacham  v.  Kich   v.    IJeed,    22   Maine,  28;  Oliver  v. 

McCorbitt,  2  Metcalf,  352  ;  Allen  v.  Hall,  Atkinson,  2  Porter,  546  ;  Frost  v.  Patrick, 

5   Ibid.    263 ;  Brown   v.  Silsby,  10   New  3   Sniedes  &  Marshall,  783 ;  Williams  v. 

Uam]).  521.  Jones,  42  Mississippi,  270. 

•*  Hean  v.  Bean,  33  New  Ilamp.  279.  8  Gordon  v.  Coolidgc,  1   Sumner,  537; 

*  Wright  V.  Foord,  5  New  Hamp.  178;  Pierce  v.  Carletcm,  12  Illinois,  358;  Ban- 
Jones  V.  Howell,  16  Alalmma,  695;  Mc-  ning  y.  Sibley,  3  Minnesota,  889;  Pioneer 
Kee  V.  Brown,  45  Texas,  503.  Printing  Co.  v.  Sanborn,  Ibid.  413;  Morse 

5  Smith  V.  Bruner,  23  Mississippi,  508.  v.  Marshall,  22  Iowa,  290. 

[509] 


§  659  JUDGMENT  AGAINST   THE   GARNISHEE.     [CHAP.  XXXIV. 

question  on  the  answer  alone,  it  being  a  question  whicli  should 
be  referred  to  a  jury.^ 

8.  Where  the  garnishee  alleges  that  he  was  induced  by  false 
and  fraudulent  representations  made  by  the  defendant,  who  knew 
them  to  be  false,  to  enter  into  the  contract  with  the  defendant, 
in  regard  to  which  it  is  souglit  to  charge  him  ;  he  cannot  be 
charged  on  his  answer  on  that  account.^ 

1  Rich  V.  Reed,  22  Maine,  28.  2  Fay  v.  Sears,  111  Mass.  154. 

[570] 


CHAP.  XXXV.]      EXTENT   OF   GARNISHEE'S   LIABILITY.  §  661 


CHAPTER    XXXV. 

EXTENT    OF    GARNISHEE'S    LIABILITY    AS    TO    AMOUNT,    AND    AS 
TO   THE   TIME   TO   WHICH   THE   GARNISHMENT   RELATES. 

§  660.  As  an  attaching  creditor  can  acqnire,  through  the 
attachment,  no  greater  rights  against  the  garnishee  than  the 
defendant  has,  except  in  cases  of  fraud,  it  follows  that  the  extent 
of  the  garnishee's  liability  is  to  be  determined  by  the  value  of 
the  defendant's  property  in  his  hands,  or  the  amount  of  the  debt 
due  from  him  to  the  defendant.^  The  garnishee  is  a  mere  stake- 
holder between  the  parties,  and  it  would  be  manifestly  unjust, 
as  long  as  he  holds  that  position,  to  subject  him  to  a  judgment 
for  a  greater  amount  than  that  in  his  hands.  Where,  therefore, 
one  is  summoned  as  garnishee  in  several  actions,  and  discloses 
in  any  of  them  that  judgment  has  been  rendered  against  him  in 
a  prior  case  for  the  whole  amount  in  his  hands,  he  will  be  dis- 
charged, unless  the  plaintiff  in  the  prior  suit  can  make  his  debt 
otherwise  than  by  recourse  to  the  garnishee.^ 

§  661.  It  is  a  recognized  right  of  a  garnishee  to  discharge  him- 
self from  personal  liability,  by  delivering  into  court  the  property 
of  the  defendant  which  is  in  his  hands.  In  such  case,  the  prop- 
erty is  wholly  within  the  control  of  the  court,  and  the  garnishee  is 
relieved  from  all  responsibility  therefor,  and  is  not  considered  as 
having  any  further  connection  with  or  concern  in  the  proceed- 
ings. It  was,  therefore,  held,  that  under  such  circumstances  he 
could  not  prosecute  a  writ  of  error  to  a  decision  of  the  court  dis- 
posing of  the  property.^ 

1  Ante,  §  458  ;  Talbott  v.  Tarlton,  5  Woodliouse  v.   Commonwealth  Ins.  Co., 

J.  J.   Marsliall,  641;  Wilcox  v.   Mills,  4  54  I'enn.  State,  307  ;  Coble '■.  Noneniaker, 

Mass.  218  ;  Sanford  v.  Bliss,  12  Pick.  116  ;  78  Ibid.  501  ;  St.  Louis  v.  llegenfuss,  28 

Meacham  v.  McCorbltt,  2  Metcalf,  352  ;  Wisconsin,  144. 

Allen    V.    Hall,   5   Ibid.   263 ;    Brown    v.  ^  Bnllard  v.   Hicks,  17  Vermont,  198. 

Silsby,    10   New    Hamp.   521  ;  Burton  v.  See  Robeson  v.  M.  &  A.  Railroad  Co.,  13 

District  Township,  11  Iowa,  1G6  ;  Peet  v.  Louisiana,  465. 

Whitniore,    16    Louisiana    Annual,    48 ;  ^  Lewis  v.  Sheffield,  1  Alabama,  134. 

[571] 


k 


§  663  EXTENT   OF   GARNISHEE'S   LIABILITY.       [CHAP.  XXXV. 

§  662.  The  garnishee  will  not,  where  he  does  not  assume  the 
attitude  of  a  litigant,  be  chargeable  with  the  costs  of  the  pro- 
ceedings against  him,  or  of  those  against  the  defendant,  unless  it 
appear  that  he  has  sufficient  in  his  hands  for  that  purpose,  after 
satisfying  the  debt.^  But  if  he  denies  indebtedness,  and  an  issue 
is  formed  to  try  the  fact,  the  proceedings  assume  all  the  nature 
and  formalities  of  a  suit  between  the  plaintiff  and  the  garnishee, 
and  all  the  consequences  of  a  suit  attend  them.  It  is  no  longer 
a  case  in  which  the  garnishee  merely  complies  with  the  process 
of  the  court,  occupying  more  the  character  of  a  witness  than  a 
party,  but  he  is,  to  every  intent,  a  party  ;  and  may  summon  wit- 
nesses, obtain  continuances,  &c.,  and  swell  the  costs  as  much  as 
the  defendant  could  have  done.  In  such  a  case,  if  the  issue  be 
found  against  him,  he  is  liable  to  a  judgment  for  the  costs  which 
have  accrued  on  the  garnishment  proceedings,  though  there  be 
no  statute  on  the  subject.^  And  so,  if  the  garnishee  refuses  to 
answer,  or  seeks  to  avoid  a  fair  investigation  of  his  liability,  he 
is  chargeable  with  any  costs  occasioned  by  such  conduct.^  And 
so,  if  the  amount  due  from  him  to  the  defendant  be  in  contro- 
versy, and  the  plaintiff  establish  that  there  is  more  in  the  gar- 
nishee's hands  than  he  admitted.  But  if  the  garnishee's  admission 
be  sustained,  he  is  not  liable  for  costs.^ 

§  663.  Whatever  the  amount  of  the  garnishee's  indebtedness 
to  the  defendant,  or  of  the  defendant's  effects  in  his  hands,  over 
and  above  that  of  the  plaintiff's  judgment  against  the  latter,  no 
judgment  can  be  taken  against  him  for  more  than  sufficient  to 
cover  the  plaintiff's  claim  against  the  defendant  and  costs.^   And 

1  Gracy  v.    Coates,  2  McCord,   224;  Hitchcock   v.   Watson,   18  Illinois,  289; 

Walkerr.  Wallace,  2  Dallas,  113;  Wither-  Doggett  v.   St.  Louis  M.  &  F.  Ins.  Co., 

spoon  I'.  Barber,  3  Stewart,  333 ;  Bread-  19   Missouri,  201 ;  Timmons  v.  Jolinson.. 

ing  V.   Siegwortli,  29  Penn.   State,  39ii ;  15  Iowa,  23.     The  rule  stated  in  tlie  text, 

Tupper  V.   Cassell,  4-5  Mississippi,  352  ;  it  will  be  noticed,  applies  to  systems  of 

Prout  V.  Grout,  72  Illinois,  456;  Johnson  practice,  prevalent  everywhere,  I  think, 

V.  Delbridge,  35  Michigan,  436.  except  in  Illinois,  authorizing  the  judg- 

'^  Thompson    v.   Allen,   4    Stewart    &  ment   against   the   garnishee  to   be  ren- 

Porter,    184;    Newlin   v.  Scott,  26  Penn.  dered  in  favor  of  the  plaintiff'.     In  that 

State,    lO'i ;  Breading   v.    Siegworth,    29  State,  however,  when  a  garnishee  is  lia- 

Ibid.  396  ;  Herring  v.  Johnson,  5  Phila-  ble,  the  judgment  is  rendered  in  favor 

delphia,  443.  of  the  defendant,  for  the  benefit  of  such 

■*  Randolph  v.  Heaslip,  11  Iowa,  37.  attaching  and  judgment  creditors  as  are 

*  Newlin  i;.  Scott,  26  Penn.  State,  102;  entitled   to   share    in    its   proceeds;  and 

Breading  v.  Siegworth,  29  Ibid.  39G.  there  the  judgment  is  for  the  whole  debt 

3  Tyler  ^^  Winslow,  46  Maine,  348 ;  of  the  garnishee  to  the  defendant,  though 
[572] 


CHAP.  XXXY.]      EXTENT   OF   GARNISHEE'S    LIABILITY.  §  665 

as  the  jtKlgment  against  him  is  only  intended  to  secure  the  satis- 
faction of  that  against  the  defendant,  if  the  phiintiff  obtain  sat- 
isfaction in  part  b}^  other  means,  he  can  proceed  against  the 
garnishee  for  no  more  than  the  unsatisfied  remainder ;  ^  and  if 
he  obtain  satisfaction  in  full,  his  recourse  against  the  latter  is  at 
an  end.2 

§  664.  In  this  connection  may  properly  be  considered  the  gar- 
nishee's liability  for  interest  on  his  debt  to  the  defendant,  pen- 
dente lite.  If  he  has  put  the  defendant's  money  at  interest,  he 
is  liable  for  the  interest.^  And  ^yhere  the  plaintiff  attaches  in 
his  own  hands  a  debt  he  owes  to  the  defendant,  it  has  been  held, 
that  interest  thereon  continues  to  run  during  the  pendency  of 
the  attachment.^  But  where  a  third  person  is  subjected  to  gar- 
nishment, whether  he  shall  be  required  to  pay  interest  on  his 
debt  during  the  time  he  is  restrained  by  the  attachment  from 
paying  the  debt,  is  a  matter  wliich  has  been  much  discussed. 

§  665.  In  deciding  this  question,  the  first  point  to  be  inquired 
into  is,  whether  the  garnishee's  debt  to  the  defendant  is  one  bear- 
ing interest  by  agreement,  or  whether  the  interest  for  which  it  is 
sought  to  charge  him  accrues  by  way  of  damages.  If  there  was 
no  contract  of  the  garnishee  to  pay  interest,  he  cannot  be  charged 
with  it ;  for  the  plaintiff  can  hold  him  for  no  more  than  the  de- 
fendant could.^  If  the  interest  accrues  by  way  of  damages  for  a 
wrongful  detention  of  the  principal  sum  by  the  debtor,  he  can- 
not be  charged  with  it,  because,  having  been  restrained  by  the 
garnishment  from  paying  his  debt,  he  is  in  no  fault  for  not  pay- 
ing, and  there  is  therefore  no  wrongful  detention,  and  therefore 
no  liability  for  damages.^  But  where  the  garnishee's  debt  is  one 
which  by  contract  bears  interest,  the  latter  is  as  much  a  part  of 
the  debt  as  the  principal ;  and  it  is  in  reference  to  such  cases  that 

it  be  more  than  is  needed  to  satisfy  the  *  Willing  v.  Consequa,  Peters   C.  C. 

attachment;  and  if  more,  tlie  surplus  is  301. 

for  the  benefit  of  the  defendant.     Stahl  &  Lyman    v.  Orr,   26    Vermont,    119 ; 

V.  Webster,  11  Illinois,  511  ;  Webster  v.  Adams  v.  Cordis,  8  Pick.  2G0;  Quigg  v. 

Steele,  75  Ibid.  544.  Kittredge,  18  New  Hamp.  137. 

^  Spring   V.   Ayer,  23  Vermont,   516.  ^  Prescott    v.   Parker,   4    Mass.   170 ; 

See  §  673.  Adams  v.  Cordis,  8  Pick.  260 ;  Swamscot 

-  Tliompson  v.  Wallace,  3  Alabama,  Machine  Co.  v.  Partridge,  5  Foster,  369 ; 

132 ;  Price  v.  Iliggins,  1  Littell,  274.  Irwin  v.   Pittsburg  &  C.  K.  R.   Co.,  43 

s  Brown   v.   Silsby,    10    New    Hamp.  Penn.  State,  488. 
521 ;  Blodgett  v.  Gardiner,  45  Maine,  542. 

[573] 


§  665  EXTENT    OF    GARNISHEE'S   LIABILITY.       [CHAP.  XXXV. 

the  question  of  the  garnishee's  liability  for  interest  has  most  fre- 
quently arisen.  On  this  point,  it  may  be  laid  down  as  a  general 
proposition,  that  a  garnishee  ought  not  to  be  charged  with  inter- 
est on  his  debt  to  the  defendant,  while  he  is,  by  the  legal  oper- 
ation of  an  attachment,  restrained  from  making  payment ;  ^ 
whether  the  attachment  terminate  in  favor  of  the  plaintiff  or  the 
defendant.^  This  applies,  however,  onl}^  to  cases  where  the  gar- 
nishee stands  in  all  respects  rectus  in  curia,  as  a  mere  stakeholder, 
and  not  as  a  litigant ;  and  it  has  received  important  qualifica- 
tions, which  have  in  reality  almost  unsettled  it.  The  courts  have 
gone  into  inquiries  as  to  whether  the  garnishee  used  the  money 
during  the  pendency  of  the  attachment;  and  as  to  the  existence 
of  fraud,  or  collusion,  or  unreasonable  delay  occasioned  b}'  the 
conduct  of  the  garnishee  ;  and  various  decisions  have  been  given, 
to  which  we  will  now  direct  attention. 

In  Pennsylvania,  the  general  rule  is  as  above  stated  ;  but  if 
there  is  any  fraud,  collusion,  or  unreasonable  delay  occasioned  by 
the  conduct  of  the  garnishee,  he  will  be  charged  with  interest.^ 

In  the  Circuit  Court  of  the  United  States  for  Pennsylvania,  the 
presumption  was  allowed  in  favor  of  the  garnishee  that  he  had 
not  used  the  money  during  the  pendency  of  the  attachment ;  but 
the  court  considered  that  if  he  did  use  it,  it  was  but  just  that  he 
should  pay  interest.*  And  the  same  rule  was  laid  down  by  the 
Supreme  Court  of  the  United  States.^ 

In  Maine,  the  garnishee  is  entitled  to  the  benefit  of  the  pre- 
sumption that  he  was  ready  to  pay,  and  had  reserved  and  was 
holding  the  money  unemployed  to  await  the  decision  of  the  cause  ; 
but  where  the  facts  rebut  such  presumption,  he  is  chargeable  with 
interest.^ 

In  Massachusetts,  the  presumption  is  that  the  garnishee  is  pre- 
vented by  law  from  paying  the  debt,  or  using  the  money ;  and  if 

1  Fitzgerald  D.  Caldwell,  2  Dallas,  215;  Hodjjson,  9  Penn.  State,  468;  Irwin  v. 
Willing  V.  Consequa,  Peters  C.  C.  301  ;  Pittsburgh  &  C.  R.  R.  Co.,  43  Ibid.  488; 
Stevens  v.  Gwathmey,  9  Missouri,  628 ;  Jackson's  Ex'r  v.  Lloyd,  44  Ibid.  82; 
Cohen  v.  St,  Louis  Perpetual  Ins.  Co.,  11  Allegheny  Savings  Bank  v.  Meyer,  59 
Ibid.  374  ;  Little  v.  Owen,  32  Georgia,  Ibid.  3()1  ;  Rushton  v.  Howe,  64  Ibid.  63. 
20;  Clark  y.  Powell,  17  Louisiana  Annual,  ■•  Willing  v.  Consequa,  Peters  C.  C. 
177.  301. 

2  Mackey  v.  Hodgson,  9  Penn.  State,  ^  Mattingly  v.  Boyd,  20  Howard  Sup. 
468.  Ct.  128 

3  Fitzgerald  v.  Caldwell,  2  Dallas,  6  Norris  v.  Hall,  18  Maine,  332; 
215;  1  Yeates,  274;  UpdegrafTy.  Spring,  Blodgett  o.  Gardiner,  45  Ibid.  542. 

11  Sergeant  &   Rawle,  188 ;  Mackey  v. 
[574] 


CHAP.  XXXV.]       EXTENT   OF   GARNISHEE'S    LIABILITY.  §  665 

the  fact  be  that  he  does  not  use  it,  he  will  not  be  chargeable  with 
interest.  But  if  this  locking  up  of  the  fund  is  merely  a  fiction, 
the  garnishee  in  truth  making  use  of  it  all  the  time  the  matter 
is  in  suspense,  he  will  be  liable  for  interest.  A  figure  used  by  the 
court,  in  a  case  involving  this  question,  has  much  illustrative 
force.  "  The  service  of  the  writ  turned  the  key  upon  the  fund, 
but  the  trustee  keeps  the  key,  unlocks  the  chest,  and  takes  the 
money  in  his  own  hands.  In  such  case,  he  cannot  be  allowed  to 
say,  '  the  fund  was  locked  up,  and  therefore  I  will  pay  nothing  for 
the  use  of  it.'  This  is  the  reason  of  the  thing,  and  there  is  no 
authority  against  it."  ^ 

In  Connecticut,  if  the  garnishee  mingles  the  defendant's  money 
with  his  own,  and  treats  it  as  such,  and  does  not  so  keep  it  that 
he  can  pay  it  over  to  the  rightful  owner  when  called  on  for  that 
purpose,  but  uses  it  indiscriminately  with  his  own,  he  is  chargeable 
with  interest. 2 

In  Marj'land,  if  the  garnishee  assumes  the  position  of  a  litigant, 
he  is  chargeable  with  interest.^ 

In  Virginia,  if  he  keep  the  defendant's  mone}^  in  his  hands 
during  the  pendency  of  the  attachment,  he  is  presumed  to  use  it, 
and  will  be  charged  with  interest.  To  avoid  this,  he  must  pay 
the  money  into  court.'^ 

In  Georgia,  the  presumption  is  that  the  garnishment  stays  the 
property  in  the  hands  of  the  garnishee,  and  the  law  considers  it  to 
remain  in  statu  quo,  until  ordered  to  be  paid  out  by  the  judgment 
of  the  court.  But  if  the  fact  be  that  the  fund  never  was  set 
apart  or  deposited,  but  continued  mixed  with  the  rest  of  the  gar- 
nishee's business  capital,  he  will  be  charged  with  interest.  And 
it  is  there  considered,  that  a  resistance  of  the  attachment  by  the 
garnishee  will  entitle  the  plaintiff  to  recover  interest  against 
him.-^ 

In  Missouri,  the  garnishee's  denial  bf  indebtedness  to  the  de- 
fendant fully  rebuts  any  presumption  that  he  had  had  the  money 
lying  idle  by  him,  ready  to  pay  the  plaintiff's  demand  when  judg- 
ment should  be  obtained.^ 

1  Adams  v.  Cordis,  8  Pick.  260.  Templeman  v.   Fauntleroy,  3  Randolpli, 

2  Woodruff  V.   Bacon,   35    Conn.   97.     434. 

See  Candee  ;;.  Skinner,  40  Ibid.  464.  5  Georgia  Ins.  and  Trust  Co.  v.  Oliver, 

3  Chase  v.  Manliardt,  1  Bland,  333.  1  Georgia,  38. 

*  Tazewell   v.   Barrett,   4    Hening    &  o  gteveus  v.   Gvvathmey,  9  Missouri, 

Munford,  259 ;  Koss  v.  Austin,  Ibid.  502  ;     636. 

[575] 


§  666  EXTENT   OF   GARNISHEE'S   LIABILITY.       [CHAP.  XXXV. 

In  Ohio,  nothing  short  of  proof  that  tlie  garnishee  actually  held 
the  money  in  readiness  to  be  disposed  of  as  directed  by  the  court, 
will  prevent  his  being  charged  with  interest.^ 

In  Iowa,  the  garnisliee  is  presumed  to  liave  kept  the  money  as 
a  separate  fund  ;  but  this  presumption  may  be  overcome,  by  liis 
assuming  the  attitude  of  a  litigant,  or  by  evidence  showing  that  he 
did  not  keep  it  as  a  sej^aratc  fund  ;  and  if  overcome,  he  is  charge- 
able with  interest.^ 

The  deductions  from  the  decisions  thus  cited  may  be  thus  reca- 
pitulated :  1.  The  presumption  is,  generally,  that  the  garnishee 
keeps  the  money  by  him,  set  apar  for  the  payment  of  the  attach- 
ment. 2.  This  presumption  may  be  rebutted,  either  by  the  course 
of  the  garnishee  in  assnming  the  position  of  a  litigant,  or  by  any 
competent  evidence  :  while  in  Virginia,  the  garnishee  can  avoid 
liability  for  interest  only  by  paying  the  money  into  court ;  and  in 
Massachusetts,  must  make  it  appear  that  he  has  not  used  the 
money.  The  course  of  decision,  therefore,  is  clearly  adverse  to 
exempting  a  garnishee  from  this  liability ;  and  the  probability  is 
that  eventually  the  rule,  as  laid  down  in  Massachusetts,  will  be 
generally  acquiesced  in, 

§  6Q6.  The  foregoing  considerations  apply  only  to  the  case  of 
the  garnishee's  liability  to  a  judgment  in  favor  of  the  plaintiff  in 
attachment,  for  interest  accrued  pendente  lite.  There  is,  how- 
ever, another  question  which  may  be  considered  as  growing  out 
of  this,  and  properly  noticeable  here.  Where  the  debt  due  from 
the  garnishee  to  the  defendant  is  not  wholly  consumed  in  meeting 
the  attachment,  and  the  garnishee  is  accountable  to  the  defend- 
ant for  a  balance,  after  satisfying  the  attachment,  what  rule  shall 
govern  the  recovery  of  interest  by  the  defendant  in  a  suit  against 
him  who  was  garnishee  ?  Shall  the  latter  be  exempted  from  pay- 
ing any  interest  on  any  part  of  his  debt  during  the  pendency  of  the 
attachment  ?  or  shall  the  exemption  extend  only  to  such  part  of 
the  debt  as  it  was  necessary  for  him  to  retain  to  satisfy  the  attach- 
ment ?  The  latter  rule  has  been  declared  in  Pennsylvania,  where 
the  court  said :  "  It  would  be  most  unreasonable,  Avhen  the  debt 
claimed  is  a  large  one,  and  the  debt  for  which  the  attachment  is- 
sued is  a  small  one,  that  interest  should  be  suspended,  during  the 

1  Candee  i'.  "Webster,  9  Ohio  State,  452. 

2  Moore  v.  Lowrey,  25  Iowa,  336. 
[576] 


CHAP.  XXXV.]      EXTENT   OF   GARNISHEE'S   LIABILITY.  §  667 

pendency  of  the  action,  on  the  whole  sum.  If  the  debt  was  ten 
thousand  dollars,  and  one  hundred  only  were  attached  in  the 
hands  of  the  debtor,  it  would  shock  our  understanding,  —  all 
mankind  would  cry  out  against  the  law,  —  if  it  pronounced  that 
the  creditor  should  lose  the  interest  on  his  ten  thousand  dollars, 
to  meet  the  debt  of  one  hundred  dollars."  ^ 

§  667.  The  garnishee's  liability,  considered  with  reference  to 
the  time  of  the  garnishment,  cannot,  without  the  aid  of  special 
statutory  provision,  be  extended  beyond  the  defendant's  effects 
or  credits  in  his  hands  at  the  date  of  the  garnishment.  The  at- 
tachment is  the  creature  of  the  law,  and  can  produce  no  effect 
which  the  law  does  not  authorize.  Its  operation,  when  served,  is 
upon  the  attachable  interests  then  in  the  garnishee's  possession  ; 
and  it  cannot  be  brought  to  bear  upon  any  liability  of  the  gar- 
nishee to  the  defendant  accruing  after  its  service,  unless  the  law 
so  declare.  And  if  such  liability  at  the  time  of  the  garnishment 
be  dependent  on  the  happening  of  a  contingency,  which  does 
happen  afterwards,  so  as  to  create  an  absolute  debt,  yet  the  gar- 
nishee cannot  be  charged  ;  for  such  was  not  the  condition  of 
things  at  the  time  of  the  garnishment.^ 

In  Massachusetts  it  has  been  uniformly  held,  that  the  garnishee 
cannot  be  charged  beyond  the  value  of  the  effects  in  his  hands, 
or  the  amount  of  debt  due  from  him  to  the  defendant,  when  he 
was  summoned.^  Therefore,  where  a  lessee,  bound  by  the  terms 
of  his  lease  to  pay  his  rent  quarterly,  was  summoned  as  gar- 
nishee of  his  lessor,  it  was  decided  that  he  could  be  charged  only 
for  so  many  quarters'  rent  as  were  due  at  the  time  of  the  gar- 
nishment, and  not  for  any  thing  falling  due  thereafter.'^  So, 
where  goods  were  delivered  to  one  to  be  manufactured,  and  the 
contract  was  entire,  and  the  job  to  be  paid  for  when  completed, 
and  before  its  completion  the  owner  was  summoned  as  garnishee 
of  the  manufacturer ;  it  was  held,  that  the  contract  was  an  entire 
one,  and  that  at  the  time  of  the  garnishment  there  was  nothing 
due  to  the  latter,  and  that  the  garnishee  was  not  chargeable.^ 

1  Sickman  v.  Lapsley,  13  Sergeant  &  5  Ibid.  263 ;  Osborne  v.  Jordan,  3  Gray, 
Rawle,  224.  277;  Hancock  v.  Colyer,  9'J  Mass.  187. 

2  Williams  v.  A.  &  K.  Railroad   Co.,  *  Wood  v.  Partridge,  11    Mass.  488; 
36  Maine,  201.  Hadley     v.     Peabody,    13     Gray,    200 ; 

3  Wilcox  V.  Mills,  4  Mass.  218 ;  San-  Brackett  v.  Blake,  7  Metcalf,  335. 

ford  V.  Bliss,  12  Pick.  116  ;  Meacham  v.  ^  Robinson   v.    Hall,    3    Metcalf,   301. 

McCorbitt,  2  Metcalf,  352  ;  Allen  v.  Hall,     See   Daily   v.  Jordan,   2   Gushing,  390  ; 

37  [577] 


§  669  EXTENT   OF   GARNISHEE'S   LIABILITY.       [CHAP.  XXXV. 

So,  where  in  an  action  arising  from  tort,  a  verdict  was  rendered 
for  the  plaintiff  on  the  20th  of  April,  but  no  judgment  was  entered 
therein  until  the  following  8th  of  May,  and  in  the  mean  time, 
on  the  20th  of  April,  the  defendant  was  garnished  ;  it  was  decided 
that,  as  the  cause  of  action  was  for  a  tort,  on  account  of  which 
the  garnishee  could  not  be  charged,  and  as  the  verdict  did  not 
convert  it  into  a  debt  until  judgment  rendered  on  it,  there  was 
nothing  owing  by  the  garnishee  when  he  was  summoned.^  So, 
in  Virginia,  where  an  agent  of  the  defendant,  employed  to 
collect  rents,  was  garnished,  he  was  held  not  chargeable  on  ac- 
count of  any  rents  collected  by  him  after  the  garnishment.-  The 
same  doctrine  obtains  in  Maine.  There,  where  a  son  gave  a 
bond  to  his  father  for  the  payment  of  certain  sums  of  money, 
and  the  delivery  of  certain  quantities  of  provisions,  at  stated 
times  in  each  year  of  his  father's  life,  it  was  held,  that  he  could 
not  be  charged  as  garnishee  of  his  father  for  any  thing  not  actu- 
ally payable  when  he  was  garnished.^  In  New  Hampshire, 
Alabama,  Louisiana,  California,  and  Tennessee,  the  same  rule 
prevails.* 

§  668.  This  position  must  be  distinguished  from  the  ease  of  the 
garnishee's  liability  in  respect  of  dehitum  in  prcesenti  solvendum 
in  futuro.^  We  have  previously  seen  that  such  a  debt  may  be 
reached  by  garnishment.^  There  the  debt  exists  at  the  time  of 
the  garnishment,  but  is  payable  afterward  :  in  the  cases  now 
under  consideration,  the  debt  has  no  existence  until  after  the 
garnishment. 

§  669.  It  should  also  be  distinguished  from  the  case  of  a  liability 
existing,  but  uncertain  as  to  amount,  at  the  time  of  the  garnish- 
ment, but  which  afterward  becomes,  as  to  the  amount,  certain. 
There,  the  garnishment  will  attach,  and  the  extent  of  the  garnishee's 

Hennessey  v.  Farrell,  4  Ibid.  267  ;  Warner  Payne  v.  Mobile,  4  Ibid.  333  ;  Roby  v. 

V.  Perkins,  8  Ibid.  518 ;  Strauss  v.  Rail-  Labuzan,   21    Ibid.   60 ;    Bean    v.   Miss, 

road  Co.,  7  West  Virginia,  368.  Union    Bank,   5    Robinson    (La.),   333; 

1  Tbayer  i'.  Southwick,  8  Gray,  229.  Smith  v.  B.   C.   &  M.  Railroad,  33  New 

2  Haffey  v.  Miller,  6  Grattan,  454.  Hamp.  337  ;  Norris  v.  Burgoyne,  4  Cali- 

3  Say  ward  v.  Drew,  6  Maine,  263;  fornia,  409;  Davenport  v.  Swan,  9  Hum- 
Mace  V.  Heald,  36  Ibid.  136;  Williams  v.  plireys,  186. 

A.  &  K.  Railroad  Co.,  Ibid.  201 ;  Tyler  ^  Branch   Bank  v.   Poe,    1   Alabama, 

V.  Winslow,  46  Ibid.  348.  396. 

4  Branch   Bank   v.   Poe,  1    Alabama,  <>  Ante,  §  557. 
396;  Hazard   v.   Franklin,  2   Ibid.   349; 

[578] 


CHAP.  XXXV.]      EXTENT   OF   GARNISHEE'S   LIABILITY.  §  670 

liability  will  be  determined  by  the  subsequent  ascertainment  of  the 
amount  due.  Such  was  a  case  where  an  insurance  company  was 
summoned  as  garnishee,  in  respect  of  an  amount  due  the  defendant 
for  a  loss  of  property  insured  by  the  company,  which  happened  be- 
fore, but  was  not  adjusted  until  after  the  garnishment ;  and  the 
company  was  held  hable.^  Much  more,  in  such  a  case,  is  the 
company  liable,  after  the  claim  of  the  insured  for  a  loss  has  been 
recognized  and  voted  to  be  paid.^  But  where  an  insurance  company 
was  garnished,  after  a  loss,  but  before  notice  or  proof  thereof, 
and  the  policy  issued  by  it  to  the  defendant  bound  it  to  pay  any 
loss  "within  sixty  days  after  due  notice  and  proof  thereof;'"  it 
was  held,  in  Maine,  that  the  company  could  not  be  charged,  be- 
cause at  the  time  of  the  garnishment  it  was  uncertain  and  con- 
tingent whether  the  company  would  ever  become  liable,  according 
to  the  terms  of  the  policy,  to  pay  any  thing.^ 

§  670.  But  while  it  is  true  that  the  garnishee's  Hability  cannot, 
in  the  absence  of  statutory  authority,  be  extended  beyond  the 
effects  in  his  hands  at  the  time  of  the  garnishment,  it  does  not 
necessarily  follow  that  he  must  be  charged  to  that  extent,  with- 
out regard  to  what  may  have  occurred  between  the  time  of  the 
garnishment  and  that  of  the  judgment  against  him.  There  are 
various  modes  in  which  the  amount  for  which  he  is  to  be  charged 
may  be  affected  and  decided  by  events  occurring  after  he  was 
garnished.  In  the  language  of  the  Supreme  Court  of  Massachu- 
setts, "  Some  liability  must  exist  at  the  time  the  process  is  served 
in  order  to  charge  him,  but  that  liability  may  be  greatly  modi- 
fied, and  even  discharged  by  subsequent  events.  Suppose  one 
indebted  to  the  principal  is  summoned  as  trustee,  but  he  has  va- 
rious liens  upon  the  fund,  as,  for  instance,  to  indemnify  himself 
against  suretyships  and  liabilities  for  the  principal.  These  liabil- 
ities may  all  be  discharged,  and  thus  leave  the  fund  subject  to 
the  attachment;  or  they  may  be  enforced,  in  whole  or  in  part, 
and  then  the  trustee  will  have  a  clear  right  to  deduct  from  the 
fund  the  amount  paid  by  him,  in  pursuance  of  liabilities  which 
existed  at  the  time  of  the  service,  and  thus  the  fund  may  be 

1  Franklin  F.  I.  Co.  v.  West,  8  Watts  Fire  Ins.  Co.  v.  Field,  45  Penn.  State, 
&  Sergeant,  350.    See  Nevins  (;.  Rocking-     129  ;  3  Grant,  329. 

ham  M.  F.  I.  Co.,  5  Foster,  22;  Knox  v.  '^  Swamscot  Machine  Co.  v.  Partridge, 

Protection  Ins.  Co.,  9  Conn.  430  ;  Girard     5  Foster,  369. 

3  Davis  V.  Davis,  49  Maine,  282. 
[579] 


§  671  EXTENT   OF   GARNISHEE'S   LIABILITY.       [CHAP.  XXXV. 

diminished,  or  even  wholly  absorbed.  A  factor  may  have  a  large 
amount  of  goods  of  his  principal,  on  which,  however,  he  has  a 
lien  for  his  general  balance.  He  may  have  received  of  his  prin- 
cipal bills  of  exchange,  which  have  gone  forward,  but  of  which 
the  acceptance  is  uncertain.  In  this  state  he  is  summoned.  He 
will  not  be  chargeable  for  funds  acquired  after  the  service  ;  but 
he  may  receive  funds  after  the  service,  which  will  discharge  and 
reverse  the  balance,  and  leave  the  fund  liable  to  the  trustee  pro- 
cess ;  whereas,  but  for  such  acquisition  of  funds  afterwards,  the 
fund  attached  would  be  first  liable  to  the  factor's  balance,  which 
might  thus  absorb  it.  There  are  various  modes,  therefore,  in 
which  the  question,  whether  trustee  or  not,  and  for  what  amount, 
may  be  affected  and  decided  by  events  occurring  after  the  service 
of  the  process."  The  case  to  which  these  views  were  applied 
was  this :  A.  sued  B.  by  attachment,  and  summoned  C.  as  gar- 
nishee, who  was  at  the  time  indebted  to  B.,  but  B.  was  also  in- 
debted to  him.  After  he  was  garnished,  C.  sued  B.  and  obtained 
judgment  against  him,  and  when  A.  obtained  a  judgment  against 
C.  as  garnishee,  C.  paid  over  only  the  difference  between  the 
amount  of  his  judgment  against  B.  and  that  of  A.'s  judgment 
against  him.  The  court  held,  that  where  one  is  chargeable  as  a 
debtor  of  the  defendant,  the  question  will  be,  whether  he  holds 
any  balance,  upon  a  liquidation  of  all  demands.  In  striking  such 
balance  he  has  a  right  to  set  off  from  what  he  owes  the  defend- 
ant, any  demand  which  he  might  set  off  in  any  of  the  modes 
allowed  either  by  statute  or  common  law,  or  in  any  course  of 
proceeding.  And  as  it  appeared  that  the  garnishee  was  enti- 
tled to  the  set-off  in  the  case  in  hand,  he  was  discharged. ^ 

§  671.  In  New  Hampshire,^  and  Vermont,^  and  in  Pennsylvania^ 
since  1836,  the  garnishee  is  chargeable  not  only  for  the  effects  in 
his  hands  when  he  was  summoned,  but  also  for  whatever  may 
come  into  his  hands,  or  become  due  from  him  to  the  defendant, 
between  the  time  of  the  garnishment  and  that  of  the  answer. 
In  each  case,  however,  this  results  from  peculiar  statutory  pro- 
visions.^    In  Maryland,  the  practice  is  to  condemn  all  property 

1  Smith  V.  Stearns,  19  Pick.  20.     See  *  Franklin  F.  I.  Co.  v.  West,  8  W^atts 

post,  §§  C83-C88.  &  Sergeant,  350  ;    Silverwood   v.   Bellar, 

^  Edgerley  v.  Sanborn,  6  New  Hamp.  8  Wharton,  420;  Siieetz  v.  Hobensack, 

397.  20  Penn.  State,  412. 

3  Newell  V.  Ferris,  16  Vermont,  135 ;  ^  There  is  no  sufficient   reason  why 

Spring  V.  Ayer,  23  Ibid.  516.  such  statutory  provisions  should  not  be 
[580] 


CHAP.  XXXV.]       EXTENT   OF   GARNISHEE'S   LIABILITY. 


§671 


of  the  defendant  in  the  hands  of  the  garnishee  at  the  time  of 
trial.^  And  in  New  York,  where  garnishment,  as  it  elsewhere 
exists,  is  not  known,  but  where  the  service  of  the  attachment 
upon  a  party  having  property  of  the  defendant  in  his  possession 
is,  in  effect,  an  attachment  of  the  property,  it  was  held,  as  be- 
tween different  attaching  creditors,  that  an  attachment  served  on 
the  6th  of  April,  upon  a  factor  having  in  his  hands  property  of 
the  defendant,  and  also  bills  of  lading  of  goods  consigned  to  him 
by  the  defendant,  but  not  yet  received,  was  a  continuing  attach- 
ment, which  was  entitled  to  precedence  of  one  served  on  the 
15th  of  June,  after  the  reception  by  the  factor  of  the  goods 
specified  in  the  bills  of  lading.^ 


universally  adopted,  but  cogent  reasons 
■why  they  should.  The  confinement  of 
the  operation  of  garnishment  to  the  single 
point  of  time  at  which  the  garnishee  is 
summoned,  however  sustained  by  high 
autliority,  is  contrary  to  the  custom  of 
London,  out  of  which  our  systems  of 
attachment  laws  have  sprung,  and  mate- 
rially diminishes  the  usefulness  and 
availability  of  the  remedy.  It  would  be 
wise,  therefore,  as    has    been    recently 


done  in  Alabama  and  Missouri,  to  give 
garnishment  the  effect  of  holding,  not 
only  the  effects  in  the  garnishee's  hands 
when  summoned,  but  all  coming  into 
his  hands  between  that  time  and  the  time 
of  his  answering. 

1  Glenn  v.  Boston  &  Sandwich  Glass 
Co.,  7  Maryland,  287. 

2  Patterson  v.  Perry,  5  Bosworth,  518  ; 
10  Abbott  Pract.  82. 

[581] 


§  672  a  garnishee's  right  of  defence     [chap,  xxxvi. 


CHAPTER    XXXVI. 

THE   garnishee's   RIGHT   OF   DEFENCE   AGAINST   HIS   LIABILITY 
TO   THE   DEFENDANT. 

§  672.  As  the  attaching  creditor  can  hold  the  garnishee  only 
to  the  extent  of  the  defendant's  claim  against  the  garnishee,  and 
can  acquire  no  rights  against  the  latter,  except  such  as  the  de- 
fendant had  ;  and  as  he  is  not  permitted  to  place  the  garnishee 
in  any  worse  condition  than  he  would  be  in,  if  sued  by  the  de- 
fendant ;  it  follows  necessarily,  that  whatever  defence  the  gar- 
nishee could  urge  against  an  action  by  the  defendant,  for  the 
debt  in  respect  of  which  he  is  garnished,  he  may  set  up  in  bar  of 
a  judgment  against  him  as  garnishee.^  Were  it  otherwise,  an 
attaching  creditor  might  obtain  a  recourse  against  the  garnishee, 
which  the  defendant  could  not :  a  proposition,  the  statement  of 
which,  except  as  to  cases  of  fraud,  is  its  own  refutation. 

§  672  a.  In  law,  a  judgment  in  favor  of  a  defendant  in  any 
action  is  conclusive,  as  between  him  and  the  plaintiff,  against  his 
being  indebted  to  the  plaintiff  on  the  grounds  involved  in  that 
action.  But  when  such  a  defendant  is  garnished  in  a  suit  against 
that  plaintiff,  is  that  judgment  conclusive  against  his  liability  as 
garnishee  for  the  same  cause  of  action  ?  The  Supreme  Court  of 
Maine  held,  that  this  depended  upon  whether  the  suit  was  insti- 
tuted before  or  after  the  garnishment.  If  before,  then  the  judg- 
ment is  conclusive  against  the  garnishee's  liability  ;  if  after,  not 
so  :  for  the  attaching  plaintiff  could  not  be  a  party  to  the  suit 
subsequently  brought,  and  could  not  employ  counsel  or  summon 
witnesses  therein,  or  be  heard  in  the  final  disposition  thereof. 
All  this  he  might  do  in  his  own  suit ;  and  the  defendant  therein, 
it  was  held,  could  not  devest  him  of  that  existing  right  by  bring- 

1  Strong's  Ex'r    v.    Bass,    35    Penn.  Firebaugh  v.    Stone,   36  Missouri,   111  ; 

State,  333;    Myers  v.  Baltzell,  37   Ibid.  McDermott   v.   Donegan,   44    Ibid.   85; 

491 ;  Edson  v.  Sprout,  33  Vermont,  77  ;  Ellison  v.  Tuttle,  26  Texas,  283. 
[582] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.    §  674  a 

ing  a  suit  against  him  who  had  previously  been  sumnionecl  as 
garnishee.^ 

Somewhat  similar  to  this  case  was  one  in  Massachusetts,  where 
the  garnishee,  when  summoned,  held  certain  property  which  had 
been  put  into  his  hands  by  the  defendant,  as  security  for  his  lia- 
bility as  surety  for  the  defendant  on  a  bail  bond,  given  in  a  suit 
in  which  the  defendant  had  been  arrested.  After  the  garnish- 
ment the  garnishee  surrendered  the  defendant,  who  thereupon 
took  the  poor  debtor's  oath  ;  but  the  creditor  insisted  that  the 
proceedings  were  irregular,  and  brought  an  action  against  the 
garnishee  on  the  bail  bond.  It  was  held,  that  the  question  of 
the  garnishee's  liability  on  the  bail  bond  might  be  inquired  into 
and  passed  upon  in  the  garnishment  proceeding,  notwithstanding 
►  the  pendency  of  the  suit  against  him  on  the  bond.^ 

§  673.  The  foundation  of  all  proceedings  against  garnishees  is, 
that  the  plaintiff  shall  have  an  unsatisfied  claim  against  the  de- 
fendant. Whenever  his  claim  is  satisfied,  he  can  no  more  sub- 
ject a  garnishee  to  liability,  than  he  can  levy  on  property.  It  is, 
therefore,  entirely  competent  for  the  garnishee,  in  order  to  pre- 
vent a  judgment  against  him,  to  show  that  whatever  claim  the 
plaintiff  may  have  had  against  the  defendant  has  been  satisfied  ; 
and,  if  necessary,  he  may  file  a  bill  of  discovery  against  the 
plaintiff  to  establish  the  fact.^ 

§  674.  It  is  an  invariable  rule,  that  no  understanding  or  agree- 
ment entered  into  between  the  garnishee  and  the  defendant  after 
the  garnishment,  can  have  any  effect  upon  the  rights  of  the  at- 
taching creditor,  based  on  the  relations  existing  between  the  gar- 
nishee and  the  defendant  when  the  garnishment  took  place.* 

§  674  a.  It  is  an  equally  invariable  rule,  that  no  voluntary 
payment  by  a  garnishee  of  his  debt  to  the  defendant,  after  the 
garnishment,  and  with  knowledge  on  his  part  of  its  existence 
will  prevent  his  being  charged  as  garnishee.^     But  where,  as  in 

1  Webster  v.  Adams,  58  Maine,  .317.  Allen,  410 ;  Riddle   v.  Etting,  32  Penn. 

■-i  Ilooton  y.  Gamage,  11  Allen,  354.  State,   412;    Howard    v.    Crawford,    21 

3  Hinkie  v.  Currin,  1  Humphreys,  74  ;  Texas,  399.     See  §  663. 

Baldwin  v.   Morrill,  8  Ibid.  132;  Spring  ^  Ellis  u.  Goodnow,  40  Vermont,  237. 

V.  Ayer,  23  Vermont,  516;  Thompson  v.  ^  Locke  f.  Tippets,  7  Mass.  149;  West 

Wallace,  3  Alabama,  132  ;  Price  i-.  Hig-  v.  Piatt,  110  Ibid.  308  ;  Joiinson  v.  Carry^ 

gins,  1  Littell,  274;  Gleason  v.  Gage,  2  2  California,  33 ;  Home  Mutual  Ins.  Co. 

[583] 


§  674  a  garnishee's  right  of  defence     [chap,  xxxvi. 

some  States  may  Le  clone,  the  ganiishment  process  is  served  by 
leaving  a  copy  at  the  garnishee's  abode,  in  his  absence,  if  the 
garnishee,  not  knowing  of  that  service,  pay  his  debt  to  the  de- 
fendant, it  will  discharge  his  liability.'  And  a  payment  by  the 
garnishee's  agent,  after  the  garnisliment,  bnt  in  ignorance  of  it, 
will  liave  the  same  effect  ;2  but  not  if  the  agent  knew  of  the  gar- 
nishment.^ 

Any  payment  made  by  a  garnishee  to  the  defendant,  after  gar- 
nishment, is  voluntary,  unless  made  under  the  compulsion  of 
judicial  order  or  process.  And  where  such  order  or  process  is 
relied  on  as  authorizing  such  paj'ment,  it  is  necessary  that  the 
jurisdiction  and  power  of  the  court  to  make  and  enforce  it  should 
appear  ;  and,  also,  that  the  garnishee  could  not  have  avoided 
compliance  therewith.  Thus,  where  A.  in  Alabama  consigned ' 
certain  iron  to  B.  in  New  Orleans,  who  caused  the  same  to  be 
stored  ;  and  thereafter  B.  failed  and  became  insolvent,  and  a 
syndic  was  appointed  under  the  laws  of  Louisiana  to  receive  his 
assets  for  the  benefit  of  his  creditors  ;  and  the  syndic  claimed  a 
lien  on  the  iron  for  the  price  of  the  storage  thereof ;  and  A.  was 
unable  to  obtain  the  iron,  except  on  payment  of  the  claim  for 
storage,  for  which  a  lien  on  the  iron  existed  ;  and  on  the  presen- 
tation of  these  facts  to  a  coui't  in  New  Orleans,  an  order  was 
made  thereby  for  the  payment  into  court  of  the  amount  claimed 
for  storage,  subject  to  such  order  as  the  court  might  make  as  to  the 
disposal  of  said  money  ;  and  under  that  order  A.  paid  the  money 
into  that  court,  after  garnishment  in  a  court  in  Alabama  ;  it  was 
held,  that  the  payment  so  made  was  no  defence  to  A.  against 
liability  in  Alabama  as  garnishee  of  B. ;  because,  first,  it  did  not 
appear  what,  by  the  law  of  Louisiana,  were  the  powers  and  du- 
ties of  the  syndic,  or  of  the  court  which  made  the  order ;  sec- 
ondly, that  B.,  though  in  possession  of  the  iron,  with  a  lien  on  it 
for  the  storage,  could  still  have  maintained  indebitatus  assumpsit 
against  A.  for   the  storage  ;    and   thirdly,  that  A.   could    have 

V.  Gamble,  14  Missouri,  407 ;  PuUiam  v.  35 ;  Johann   v.  Hufener,   32  Wisconsin, 

Aler,  15  Grattan,  54  ;  Wilder  v.  Weather-  195. 

head,  32  Vermont,  765  ;  Cleneay  v.  June-  ^  Robinson   v.   Hall,  3   Metcalf,  301  ; 

tion  R.  R.  Co.,  26  Indiana,  375 ;  Toledo,  Thorne  v.  Matthews,  6  Cushinif,  544. 
W.    &    W.    R.    R.    Co.    V.   McNulty,    34  ■^  Spooner  v.  Rowland,  4  Allen,  485. 

Ibid.  531;   Hughes  v.  Monty,  24  Iowa,  3  Conley   v.   Chilcote,  25  Ohio  State, 

499;  Parker    v.    Parker,   2   Hill  Cli'y,  320. 
[584] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.     §  674  d 

forced  the  surrender  of  the  iron,  by  suit,  without  repaying  the 
chai"ges  upon  it  to  either  B.  or  the  syndic.^ 

§  674  h.  The  time  at  which  a  payment  by  a  garnishee  to  a  de- 
fendant was  made,  may  become  material  in  reference  to  his  lia- 
bility under  a  garnishment  made  on  the  same  day  and  about  the 
same  time.  If  the  garnishee  set  up  such  a  payment,  it  is  for  him 
to  show  that  it  was  made  prior  to  the  garnishment,  for  he  is  cog- 
nizant of  both  facts,  and,  better  than  any  one  else,  can  show  their 
relative  positions.  He  is  not  entitled  to  a  presumption  in  his 
favor.  On  the  contrary,  the  presumption  will  be  against  him,  if 
he  fails  to  show  the  true  state  of  the  facts.  Thus,  where  the 
return  of  the  officer  showed  the  garnishment  of  a  corporation  at 
half-past  six  o'clock  in  the  forenoon,  and  the  garnishee  set  up  a 
payment  made  on  the  same  day,  without  any  evidence  of  the 
particular  time,  the  garnishment  was  held  to  have  been  prior  to 
the  payment.^ 

§  674  c.  If  a  garnishee  assume  to  determine  that  the  garnish- 
ment proceeding  is  defective,  and  therefore  not  binding  on  him, 
and  thereupon  pay  his  debt  to  the  defendant,  and  his  judgment 
on  that  point  be  held  erroneous,  the  payment  will  not  prevent 
his  being  charged.  Thus,  one  was  garnished  under  a  writ  against 
Richard  Johnson,  whose  real  name  was  Richard  H.  Johnsen. 
After  the  garnishment  the  garnishee  paid  to  the  defendant  the 
debt  he  owed  him,  and  set  up  that  payment  in  discharge  of  his 
liability,  because  of  the  misnomer  in  the  writ ;  but  the  defence 
was  overruled,  and  the  garnishee  charged.'^ 

§  674  d.  Every  alleged  payment  must  be  a  payment  in  fact,  not 
a  contrivance  intended  to  be  a  payment  or  not,  as  circumstances 
might  subsequently  require.  Therefore,  where  a  person,  being  told 
that  he  was  going  to  be  summoned  as  garnishee  of  another,  gave 
the  other  a  check  on  a  bank,  and  was  afterwards  garnished ;  and 
stated  in  his  answer  that  he  did  not  know  that  the  check  had 
ever  been  presented  to  the  bank,  and  that,  by  an  understanding 
between  him  and  the  defendant,  it  was  placed  in  the  hands  of  a 
clerk  in  the  garnishee's  store  ;  it  was  held,  that  the  garnishee 

1  Mobile  &  Ohio  R.  R.  Co.  v.  Whitney,  2  Harris  v.  Somerset  &  K.  R.  R.  Co., 

39  Alabama,  468.  47  Maine,  298. 

3  Paul  V.  Johnson,  9  Philadelphia,  32. 
[585] 


§  675  garnishee's  eight  of  defence     [chap,  xxxvi. 

might  at  pleasure  revoke  the  check,  and  that  the  giving  of  it 
was  no  pa3"ment ;  and  he  was  charged.^ 

§  674  e.  If  the  garnishee's  liability  to  the  defendant  be  one  in 
which  another  is  jointly  bound  with  him,  and  his  co-obligor,  not 
being  garnished,  pay  the  debt,  such  payment  is  a  discharge  of  the 
garnishee.^ 

§  674/.  If  a  garnishee  be  discharged,  and  before  the  plaintiff 
sues  out  a  writ  of  error  to  the  judgment  discharging  him,  he  pay 
his  debt  to  the  defendant,  on  a  judgment  which  the  latter  had 
recovered  against  him,  it  will  discharge  his  liability,  though  the 
judgment  discharging  him  be  afterwards  reversed.^ 

§  675.  While  a  voluntary  payment,  after  garnishment,  will  not 
discharge  the  garnishee's  liability,  a  payment  under  a  previous 
garnishment  will  have  all  the  force  and  effect  of  a  payment  prior 
to  the  institution  of  the  suit  in  which  it  is  sought  to  charge  him ; 
for  the  operation  of  the  previous  garnishment  began  at  the  time 
it  was  made,  and  the  subsequent  payment  was  only  the  consum- 
mation of  a  right  existing  at  the  time  of  the  second  garnishment.* 
But  a  payment  made  by  a  garnishee  under  an  execution  against 

1  Dennie  v.   Hart,   2  Pick.   204.     In  by  B.,  and  was  in  his  hands  at  the  time 

Barnard    v.    Graves,    16    Pielc.   41,   the  of  tiie  garnisliment.     The  above  case  of 

town  of  Worcester  was  summoned  as  gar-  Dennie  v.  Hart  was  relied  on  as  estab- 

nishee  of  A.,  and  answered,  sliowing  that  lishing  that  tlie  giving  of  the  check  was 

defendant  was   employed  by  tlie  town  ;  no  payment  by  the  town  ;  but  tlie  court 

that   on   a  certain   day  a   settlement  of  said :  "  In   tlie   case  of  Dennie  ?'.  Ilart, 

accounts  was  had  between  A.   and  the  the     court    considered     the    transaction 

town,  when  the  selectmen   gave   him   a  merely  colorable  ;  that  the  depositary  of 

check   on   a   bank   for   $210;  that  there  the  check  was  the  agent  of  the  trustee 

being,  however,  a  debt  due  from  him  to  himself;   and  that  the    trustee   had  the 

the  town,  the  amount  of  which  was  not  control  of  it,  and  might  revoke  it  when 

then  ascertained,  it  was  agreed  that  the  he   pleased ;  and   the   decision   went   on 

amount  of  the  debt,   when  ascertained,  that   ground.     In   the   present  case,   we 

should  be  deducted  from  the  sum  to  be  think  the  depositary  was  not  tiie  agent 

obtained  by  the   check ;  that   this    debt  of  the  town,  but  of  A.,  to  receive  and 

was    afterwards    found    to    amount    to  appropriate  the  amount  of  the  check,  and 

$67.58  :    that  the   defendant  being   also  that  the  town  could  not  control  or  revoke 

indebted  to  one  B.  in  the  sum  of  $19.77,  it.    The  check,  therefore,  was  a  payment 

it  was  further  agreed  by  the  selectmen  of  the  debt  due  from  the  town  to  A." 
and  the  defendant,  that  the  check  should  ^  Jgwett  v.  Bacon,  6  Mass.  60 ;  Nash 

be  placed  in  B.'s  hands,  and  the  amount  v.  Brophy,  13  Metcalf,  476. 
thereof  paid  to  him  by  the  bank,  in  order  ^  Webb  v.  Miller,  24  Mississippi,  638. 

that  he  might  retain  the  sums  due  from  *  New  Orleans  M.  &  C.  R.  R.  Co.  v. 

the  defendant  to  the  town  and  to  himself;  Long,  50  Alabama,  498. 
and  the  check  was  accordingly  received 
[586] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.         §  679 

him  as  such,  will  not  avail,  where,  before  payment,  the  debt  he 
owed  the  defendant  was  set  apart  to  the  defendant  as  a  portion 
of  his  legal  exemption  of  personalty,  and  the  garnishee  was  noti- 
fied thereof  before  he  made  the  payment.^ 

§  676.  Though  a  garnishee  make  payment  after  his  garnish- 
ment, on  execution  obtained  against  him  by  the  defendant,  yet  if 
such  execution  was  irregular,  and  might  have  been  set  aside  on 
his  motion,  it  is  held,  in  Missouri,  to  be  no  protection  against  the 
garnishment.^ 

§  676  a.  If  a  garnishee,  under  order  of  the  court,  pay  the 
money  in  his  hands  to  the  sheriff,  to  be  held  by  him  pending 
the  litigation,  he  will  be  thereby  protected  against  both  the 
plaintiff  and  defendant  in  the  attachment,  because  both  are 
bound  by  the  order.^ 

§  677.  If  one  indebted  pay  his  debt;  to  a  creditor  of  his  creditor, 
without  any  authority  from  his  creditor,  and  be  afterwards  gar- 
nished in  a  suit  against  the  latter,  this  unauthorized  payment 
will  not  avail  him  as  a  defence ;  and  a  ratification  of  it  by  the 
defendant  after  the  garnishment  will  be  ineffectual,  because  the 
jus  disponendi  in  the  defendant  is  taken  away  by  the  attach- 
ment.* 

§  678.  If  the  debt  of  the  garnishee  to  the  defendant  is  barred 
by  the  statute  of  limitations,  he  may  take  advantage  of  the  stat- 
ute, just  as  he  could  if  sued  by  the  defendant.^ 

§  679.  If  the  consideration  of  the  garnishee's  debt  to  the 
defendant  has  failed,  the  garnishee  may  take  advantage  of  it. 
Thus,  where  the  garnishee  had  purchased  a  tract  of  land  from 
the  defendant,  the  last  payment  for  which  was  due,  but  after 
the  note  therefor  was  given,  the  garnishee  discovered  that  there 
was  a  judgment  against  the  defendant  which  bound  the  land, 

1  Watkins  v.  Cason,  46  Georgia,  444.  ^  Hinkle  v.  Currin,  2  Humphreys,  137 ; 

2  Home  Mutual  Ins.  Co.  v.  Gamble,  Benton  v.  Lindell,  10  Missouri,  557 ;  Gee 
14  Missouri,  407.  v.   Gumming,  2  Haywood  (N.  C.),  398; 

8  Rochereau  v.  Guidry,  24  Louisiana  Gee  v.  Warwick,  Ibid.  354 ;  Hazen  v. 
Annual,  294.  See  Ohio  &  M.  II.  W.  Co.  Emerson,  9  Pick.  144  ;  James  v.  Fellowes, 
V.  Alvey,  43  Indiana,  180.  20  Louisiana  Annual,  IIG. 

*  Sturtevant  v.   Kobinson,    18    Pick. 
175. 

[587] 


§  682  garnishee's  right  of  defence     [chap,  xxxvi. 

and  wliich  he  was  compelled  to  satisfy,  and  the  amount  was 
greater  than  that  of  the  note;  it  was  held  that  he  could  not  be 
charged.^ 

§  680.  If  a  debtor,  by  the  default  of  his  creditor,  be  discharged 
from  his  contract,  he  cannot,  in  respect  of  that  contract,  be 
charged  as  garnishee  of  his  creditor.  Thus,  where  A.  gave  his 
note  to  B.  for  five  tons  of  hay,  deliverable  in  July,  1808,  on  A.'s 
farm,  and  B.  was  not  there  then  to  receive  it;  it  was  held,  that 
B.  had  no  cause  of  action  against  A.,  and  tliat  A.,  therefore, 
could  not  be  held  as  his  garnishee. ^ 

§  681.  Where,  as  in  Virginia,  a  proceeding  by  foreign  attach- 
ment in  chancery  is  allowed,  the  garnishee  may  set  up  any  equi- 
table defence,  which  shows  that  in  equity  he  owes  no  debt  to 
the  defendant.^  It  was,  therefore,  held  in  that  State  in  such  a 
proceeding,  that  a  garnishee  with  whom  a  horse  was  left  by  the 
defendant  for  keeping,  was  entitled,  as  against  the  attaching 
creditor,  to  have  his  claim  for  the  keeping  first  satisfied  out  of 
the  property.* 

§  682.  But  any  defence  which  the  garnishee  seeks  to  interpose 
against  his  liability  must  be  such  as  would  avail  him  in  an  action 
by  the  defendant  against  him.^  Extraneous  matters  having  no 
relation  to  the  question  of  his  indebtedness  to  the  defendant 
cannot  be  set  up  by  him.  It  was,  therefore,  held,  that  he  could 
not  defeat  the  garnishment  by  showing  that  the  judgment  under 
which  he  was  garnished  did  not  belong  to  the  plaintiff.^  And  so, 
a  garnishee  cannot  retain  from  the  effects  in  his  hands  any  thing 
to  meet  a  contingent  liability  which  he  is  under  for  the  defend- 
ant. Thus,  where  the  garnishee  had  held  notes  of  the  defendant 
for  a  debt,  and  caused  them  to  be  discounted  by,  and  indorsed 
them  to,  a  bank,  and  they  were  not  yet  due  when  the  garnish- 
ment took  place  ;  it  was  held,  that  the  garnishee  had  no  claim 
against  the  defendant,  and  that  his  contingent  liability  as  indorser 
of  the  notes  was  no  defence  to  his  being  charged  as  garnishee ; 

1  Sheldon  v.   Simonds,   Wright,   724.  3  Qiassell  v.  Thomas,  3  Leigh,  113. 
See  Mathis  v.  Clark,  2  Mills'  Const.  Ct.  *  Williamson  v.  Gayle,  7  Grattan,  152. 
456  ;  Russell  v.  Hinton,  1  Murphey,  468;  *  Jones  v.  Tracy,  75  Penn.  State,  417. 
Moser  v.  Maberry,  7  Watts,  12 ;  Ball  v.  ®  Jackson  v.   Shipman,   28  Alabama, 
Citizens'  Nat.  Bk.,  39  Indiana,  364.  488. 

2  Jewett  V.  Bacon,  6  Mass.  60. 

[588] 


I 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.         §  683 

and  the  court  refused  to  continue  the  cause  until  the  maturity  of 
the  notes,  in  order  to  see  whether  they  would  be  paid.^ 

§  682  a.  When,  however,  the  garnishee  sets  up  a  defence 
against  his  liability  to  the  defendant,  it  must  not  be  such  as  would 
operate  as  a  fraud  upon  the  defendant's  creditors.  Thus,  where 
an  attorney-at-law  was  garnished,  who  had  received  from  the  de- 
fendant money,  as  security  for  several  purposes ;  one  of  which 
was  to  secure  such  fees  as  might  be  due  the  attorney  in  any 
business  of  the  defendant,  which  the  attorney  might  have  in 
hand  for  him  "  either  now  or  hereafter ; "  the  court,  while  sus- 
taining the  garnishee's  right  to  retain  enough  of  the  money  to 
pay  any  fees  due  or  to  become  due  in  any  business  in  which  he 
had  been  retained  by  the  defendant  before  the  garnishment;  yet 
denied  that  right  as  to  any  business  in  which  the  retainer  was 
subsequent  to  the  garnishment,  or  as  to  business  which  arose 
afterward,  in  which  the  garnishee  claimed  fees  merely  by  virtue 
of  a  prior  general  retainer.  "  It  would,"  said  the  court,  "  be  a 
fraud  upon  creditors  to  permit  a  debtor  to  place  his  property  be- 
yond their  reach,  by  depositing  it  with  an  attorney,  to  be  held 
nominally  for  future  services  to  be  rendered  in  whatever  litiga- 
tion the  debtor  might  be  engaged."  ^ 

§  682  h.  If  a  garnishee  admit  facts  showing  some  liability,  but 
rely  on  other  facts  as  a  defence  against  a  recovery  by  the  plain- 
tiff, he  cannot  on  the  trial  set  up  another  and  repugnant  defence. 
His  allegata  and  probata  must  agree.^ 

§  682  e.  The  garnishee  cannot  escape  liability,  by  showing  that 
the  defendant's  money  in  his  hands  had  been  received  by  him 
through  a  transaction  in  violation  of  law.  Thus,  where  the 
money  in  the  garnishee's  hands  had  been  received  from  the  sale 
of  intoxicating  liquors,  made  by  him  as  agent  of  the  defendant, 
which  sale  was  unlawful ;  it  was  held,  that  this  constituted  no 
defence  against  the  garnishee's  liability.* 

§  683.  The  particular  defence  which  has  given  rise  to  the 
greatest  amount  of  adjudication,  is  set-off ;  concerning  which  the 

1  Smith  V.  B.   C.  &  M.  Railroad,  33  '  First  Baptist   Churcla  v.   Hyde,  40 

New  Ilamp.  337.  Illinois,  150. 

■^  Grain  v.  Gould,  46  Illinois,  293.  *■  Thayer  v.  Partridge,  47   Vermont, 

423. 

[589] 


§  684  garnishee's  right  of  defence    [chap,  xxxvi. 

rule  is  well  established,  that  the  rights  of  the  garnishee  shall  not 
be  distuibed  by  the  garnishment.  Whatever  claim,  therefore, 
he  has  against  the  defendant,  and  of  which  he  could  avail  himself 
bv  set-off  in  an  action  between  them,  will  be  equally  available  to 
him  in  the  same  way,  in  the  garnishment  proceeding.^  And 
though  the  set-off  consist  of  moneys  paid  by  the  garnishee,  on 
his  verbal  assumpsit  of  debts  of  the  defendant,  which  he  might 
have  avoided  by  pleading  the  statute  of  frauds,  the  plaintiff  can- 
not object  to  it ;  for  that  plea  is  a  personal  privilege  which  may 
be  waived,  and  having  been  waived  by  the  garnishee,  his  pay- 
ment cannot  be  assailed  on  that  ground.^ 

§  684.  The  claim  which  the  garnishee  seeks  to  set  off  against 
his  indebtedness  to  the  defendant  must,  however,  be  due  in  the 
same  right  as  his  indebtedness.  Therefore,  a  garnishee  answering 
that  he  is  indebted  to  the  defendant,  cannot  set  off  a  claim  he 
has,  as  administrator  of  another  person,  against  the  defendant.^ 
So,  if  he  be  indebted  individually  to  the  defendant,  he  cannot 
set  off  a  debt  due  from  the  defendant  to  him  and  another  jointly.^ 
So,  where  several  garnishees  were  indebted,  as  copartners  to  the 
defendant,  who  was  indebted  to  them  individually  as  legatees,  it 
was  held,  that  the  two  debts  could  not  be  set  off  against  each 
other.^  But  where  a  copartnership  was  indebted  to  the  defend- 
ant, and  a  part  only  of  the  members  of  the  firm  were  garnished, 
it  was  held,  in  Massachusetts,  that  those  who  were  summoned 
should  be  allowed  the  benefit  of  such  set-offs  as  they,  and  their 
copartners,  not  summoned,  were  entitled  to  against  the  defend- 

1  Picquet  v.  Swan,  4  Mason,  443;  either  by  the  common  or  statute  law,  if 
Ashby  V.  Watson,  9  Missouri,  236;  Beach  tlie  action  were  brouglit  by  tlie  defend- 
V.  Viles,  2  Peters,  675 ;  Mattingly  v.  ant  himself  against  the  trustee.  One  of 
Boyd,  20  Howard  Sup.  Ct.  128 ;  Arledge  the  common  and  material  elementary 
V.  White,  1  Head, 241 ;  Ranking.  Simonds,  principles  applicable  to  the  doctrine  of 
27  Illinois,  352 ;  Sampson  v.  Hyde,  16  set-oil,  is,  that  the  claims  between  the 
New  Hamp.  492 ;  Brown  v.  Warren,  43  parties  should  be  mutual  in  their  char- 
Ibid.  430;  Strong's  Ex'r  v.  Bass,  35  acter,  and  should  exist  at  the  time  of 
Penn.  State,  833;  Nesbitt  v.  Campbell,  the  commencement  of  the  suit."  Wheeler 
5  Nebraska,  429.  In  New  Hampshire  v.  Emerson,  45  New  Harap.  526. 
the  rule  on  this  subject  was  thus  stated  :  -  McCoy  v.  Williams,  6  Illinois  (1 
"  The  principle  is  well  settled,  that  the  Oilman),  584. 

trustee  may  retain  in  his  hands,  of  the  •<  Thomas  v.  Hopper,  5  Alabama,  442. 

funds  of  the  debtor,  an  amount  equal  to  *  Gray  v.  Badgett,  5  Arkansas,  16. 

all   sums,  of   which   said   trustee   might  ^  Blanchard  i'.  Cole,  8  Louisiana,  160; 

legally  or  equitably  avail  himself  by  way  Wells   v.   Mace,    17  Vermont,  503.     See 

of  set-ofF,  by  any  of  the  modes  allowed  Norcross  v.  Benton,  88  Penn.  State,  217. 
[590] 


CHAP.  XXXVI.]    AGAESrST  HIS  LIABILITY  TO  DEFENDANT.         §  685 

ant.^  And  where  A.  had  in  his  hands  a  fund,  out  of  which  he 
and  B.  &  C.  were  entitled  to  a  certain  amount,  and  the  remainder 
was  to  go  to  D.,  and  A.  was  summoned  as  garnishee  of  D. ;  it 
was  held,  that  he  might  retain  not  only  what  was  due  to  himself, 
but  what  was  due  to  B.  &  C.^  And  where  two  persons  were 
summoned  as  garnishees,  who  were  indebted  to  the  defendant 
jointly,  it  was  held,  that  they  might  set  off  against  their  debt  to 
him,  not  only  a  claim  which  they  jointly  had  against  him,  but  the 
several  claim  of  each  of  them.^ 

§  684  a.  The  claim  upon  which  the  garnishee  relies  as  a  set-off, 
must  be  one  arising  ex  contractu.  Therefore,  where  a  town  was 
garnished,  and  attempted  to  set  off  a  tax  due  to  it  from  the  de- 
fendant against  its  indebtedness  to  him,  the  right  was  denied, 
upon  the  ground  that  the  tax  was  in  no  sense  a  contract,  express 
or  implied.^  So,  where  a  garnishee  sought  to  deduct  from  his 
debt  to  the  defendant  certain  moneys  which  he  had  previously 
paid  the  defendant  for  intoxicating  liquors  sold  by  the  defendant 
to  him,  in  violation  of  law,  and  which  he  was  authorized  by  stat- 
ute to  recover  back  "  in  an  appropriate  action ; "  it  was  held, 
that  where  a  statute  confers  a  remedy  unknown  to  the  common 
law,  and  prescribes  a  mode  of  enforcing  it,  that  mode  alone  can 
be  resorted  to;  that  the  right  of  the  garnishee  to  reclaim  the 
money  he  had  illegally  paid  the  defendant  was  not  founded  upon 
a  contract,  but  arose  solely  from  the  violation  of  law  ;  that  it  was 
given  to  the  purchaser  alone,  to  be  enforced  at  his  option,  and 
could  be  enforced  by  him  only  in  the  specific  mode  pointed  out 
in  the  statute  itself ;  and  that  he  could  not  enforce  it  by  way  of 
deduction  from  his  debt  to  the  defendant.^ 

§  685.  Whether  the  garnishee's  right  of  set-off  Avill  be  restricted 
to  debts  actually  due  and  payable  from  the  defendant  to  him  at 
the  date  of  the  garnishment,  has  been  differently  decided.  In 
Massachusetts,  New  Hampshire,  Vermont,  and  Maryland,  the 
rule  is,  that  if  the  defendant  before  final  anstver  becomes  mdebted 

1  Hathaway  v.  Russell,  16  Mass.  473.       15-5.     See  Shaw  v.  Peckett,  26  Vermont, 

2  Manufacturers' Bank  v.  Osgood,  12  482;  Camden  v.  Allen,  2  Dutcher,  398; 
Maine,  117.  Pierce  v.  Boston,  3  Metcalf,  520;  Perry 

•*  Brown  v.   Warren,  43  New  Hamp.  v.   Washburn,  20  California,  318;  May- 

430.  hew  V.  Davis,  4  McLean,  213. 

*  Johnson    v.   Howard,   41    Vermont,  5  Thayer   v.   Partridge,   47  Vermont, 

122 ;  Hibbard   i;.   Clark,  56  New  Hamp.  423. 

[591] 


§  686  garnishee's  right  of  defence    [chap,  xxxvi. 

to  the  garnishee,  on  any  contract  entered  into  before  the  garnish- 
ment, the  garnishee's  right  of  set-off  exists.^  Thus,  where  the 
garnishee,  when  summoned,  was  indebted  to  the  defendant,  but 
\vas,  at  the  same  time,  liable  as  accommodation  indorser  of  a  note 
of  the  defendant  for  a  larger  amount,  which  became  due  after  the 
garnishment,  and  was  protested  for  non-payment,  and  the  gar- 
nishee paid  it  before  he  made  his  answer;  the  court  held,  that  lie 
could  set  off  the  amount  of  the  note  against  his  debt  to  the  de- 
fendant; and  in  giving  their  decision,  observed:  "Under  these 
circumstances,  we  think  he  cannot  be  held  as  trustee;  for  it 
would  be  against  justice  that  he  should  be  held  to  pay  a  creditor 
of  his  debtor  the  only  money  by  which  he  can  partially  indemnify 
himself.  This  question  has  not  before  arisen,  but  we  think  it 
quite  consistent  with  the  object  and  views  of  the  legislature,  and 
with  the  general  tenor  of  the  statute,  that  if  before  final  answer 
the  debtor  becomes  indebted  to  the  respondent  on  any  contract 
entered  into  before  the  service  of  the  writ,  the  latter  shall  have  a 
right  of  set-off,  and  be  chargeable  only  with  the  final  balance,  if 
one  should  be  due.  This  decision  will  not  reach  the  case  of  a 
liability  incurred  after  the  service  of  a  writ,  or  where  the  effect  of 
such  liability  may  be  avoided  by  reasonable  diligence  on  the  part 
of  the  person  liable,  to  procure  the  payment  of  the  debt  by  the 
principal ;  nor  where  it  is  contingent  whether  the  liability  will 
ever  be  enforced  or  not ;  but  we  confine  it  to  such  a  case  as  we 
have  before  us,  in  which  there  was  an  actual  liability  before  the 
service  of  the  writ,  and  an  actual  payment,  by  necessity,  before 
the  answer."  ^ 

§  686.  On  the  other  hand,  it  has  been  decided  in  Delaware, 
that  the  garnishee  cannot  set  off  a  note  of  the  defendant  which 
was  not  due  at  the  time  of  the  garnishment.^  And  where,  before 
the  garnishment,  a  judgment  had  been  obtained  against  the  gar- 
nishee, as  security  of  the  defendant,  it  was  held,  in  Arkansas,  to 
be  no  defence  against  the  garnishee's  liability,*  even  though  after 

•  Boston  Type  Co.  v.  Mortimer,  7  chants'  Bank  v.  Franklin  Bank,  31  Mary- 
Pick.  166  ;  Allen  v.  Hall,  6  Metcalf,  263 ;  land,  404. 

Swamscot   Machine    Co.    v.  Partridge,  5  -  Boston   Type    Co.   v.    Mortimer,   7 

Foster,    369 ;  Boardman    v.   Cushing,    12  Pick.  166. 

New  Hamp.  105;  Boston  &  Maine  Rail-  *  Edwards  v.  Delaplaine,  2  Harring- 

road  V.   Oliver,  32  Ibid.  172 ;  Strong  v.  ton,  o22. 

Mitchell,    19    Vermont,    644 ;    Smith    v.  *  Field  v.  Watkins,  5  Arkansas,  672. 

Stearns,   19   Pick.  20;  Farmers  &  Mer- 
[592] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.         §  686 

the  garnishment  he  satisfied  the  judgment. ^  In  Maine,  the  debt 
due  the  garnishee,  and  which  he  seeks  to  set  off  against  his  lia- 
bility to  the  defendant,  must  have  been  a  debt  due  at  the  time  of 
the  garnishment.^  And  so  in  Connecticut  ^  and  Alabama.*  In 
the  Circuit  Court  of  the  United  States  for  the  Third  Circuit,  the 
following  case  occurred :  A.  was  summoned  on  the  14th  of  Sep- 
tember, as  garnishee  of  B.,  and  in  his  answer  admitted  having 
received,  on  the  19th  of  September,  fifty  crates  of  earthenware 
belonging  to  the  defendant,  which  on  being  sold  netted  |900 ; 
but  stated  that  he  was  indorser  on  bills  accepted  by  B.,  which 
had  been  protested  before  the  garnishment,  and  after  the  gar- 
nishment were  paid  by  him.  This  case,  it  will  be  perceived, 
differs  from  that  in  Massachusetts,  just  cited,  in  the  important 
point  of  the  garnishee's  liability  as  indorser  having  been  fixed 
before  the  garnishment,  though,  as  in  that  case,  the  payment  was 
made  afterward.  Washington,  J.,  charged  the  jury:  "  This  is 
a  hard  case  upon  the  garnishee,  who,  at  the  time  this  attachment 
was  levied,  was  liable  to  pay  these  bills,  as  indorser,  to  a  much 
greater  amount  than  the  value  of  the  funds  of  the  defendant  in 
his  hands,  and  if  he  had  then  paid  them  he  most  undoubtedly 
would  not  have  had  in  his  hands  any  effects  of  the  defendant,  as 
he  could  not  have  been  liable  for  more  than  the  balance  of  account 
between  him  and  the  defendant.  But,  until  he  paid  them,  he 
was  not  a  creditor  of  the  defendant,  and  of  course  the  attachment 
bound  the  effects  of  the  defendant  in  his  hands,  at  the  time  it 
was  laid,  which  could  not  be  affected  by  subsequent  credits  to 
which  he  might  be  entitled.  The  law  of  this  State  is  too  strong 
to  be  resisted.  It  not  only  declares,  that  the  goods  and  effects 
of  the  absent  debtor  in  the  hands  of  the  garnishee  shall  be  bound 
by  the  attachment,  but  that  the  garnishee  shall  plead  that  he  had 
no  goods  and  effects  of  the  debtor  in  his  hands  when  the  attach- 
ment was  levied,  nor  at  any  time  since;  on  which  the  plaintiff  is 
to  take  issue,  and  the  jury  are  to  find  the  fact  put  in  issue,  one 
way  or  the  other.  Now,  until  these  bills  were  paid  by  the  gar- 
nishee, he  had  no  claim  against  the  defendant ;  and  on  the  19th 
of  September,  he  had  goods  of  the  defendant  in  his  hands,  which 
must  decide  the  issue  in  favor  of  the  plaintiff.  The  case  must  be 
decided  precisely  in  the  same  manner  as  if  this  cause  had  come 

1  Watkins  v.  Field,  6  Arkansas,  391.  ^  Parsons  v.  Eoot,  41  Conn.  161. 

2  Ingalls  V.  Dennett,  G  Maine,  79.  *  Selfy.  Kirkland,  24  Alabama,  275. 

38  [593] 


§  688  garnishee's  right  of  defence     [chap,  xxxvi. 

on  before  those  bills  were  paid  by  the  garnishee.  Your  verdict, 
therefore,  must  be  for  the  plaintiff,  to  the  amount  of  the  effects 
acknowledged  by  the  garnishee  to  have  been  in  his  hands, 
independent  of  those  bills."  ^ 

The  Supreme  Court  of  Pennsylvania  held  the  same  general 
doctrine,  and  said  :  "  A  cross  demand  against  the  defendant  in  an 
attachment  may  be  set  off  by  the  garnishee,  as  it  may  by  a 
defendant  in  any  other  suit,  but  subject  to  the  same  rules  and  re- 
strictions; and  a  defendant  may  not  set  off  a  demand  acquired 
after  the  action  was  instituted.  Nor  may  a  plaintiff  give  evidence 
of  a  cause  of  action  incomplete  at  the  impetration  of  the  writ. 
But  set-off  is  in  substance  a  cross-action ;  and  a  cross  demand 
also  must  have  been  complete  when  the  action  was  instituted. 
In  this  respect  the  parties  stand  on  equal  ground.  Neither  is  al- 
lowed to  get  the  whip  hand  and  souse  the  other  in  costs,  hy  starti^ig 
before  he  was  ready."  ^ 

§  687.  It  may  not  unfrequently  become  a  question,  whether  the 
set-off  claimed  by  the  garnishee  was  acquired  before  or  after  the 
garnishment.  In  such  case  there  is  no  presumption  ;  but  the  gar- 
nishee, alleging  the  existence  of  the  set-off  before  the  garnish- 
ment, must  support  his  allegation  with  proof.^  If  the  set-off  was 
acquired  by  the  garnishee  after  the  garnishment,  it  cannot  avail 
him  as  against  his  liability  to  the  defendant.^ 

§  688.  In  regard  to  set-offs  the  Supreme  Court  of  Massachusetts 
has  always  entertained  an  expansive  and  equitable  view  of  the 
rights  of  garnishees.  There,  as  we  have  seen,^  if  the  defendant 
before  final  answer  becomes  indebted  to  the  garnishee,  on  any 
contract  entered  into  before  the  garnishment,  the  garnishee's 
right  of  set-off  exists.  It  is  also  held  to  be  clearly  the  construc- 
tion of  the  trustee  process  in  that  State,  that  where  one  is  charge- 
able in  consequence  of  being  the  debtor  of  the  defendant,  the 
question  will  be,  whether  he  holds  any  balance  ujjon  a  liquidation 
of  all  demands.    In  striking  such  balance  he  has  a  right  to  set  off, 

1  Taylor  v.  Gardner,  2  Washington  *  Dyer  v.  McHenry,  13  Iowa,  527; 
C.  C.  488.  Grain  v.  Gould,  46  Illinois,  293  ;  Wheeler 

2  Pennell  v.  Grubb,  13  Penn.  State,  v.  Emerson,  45  New  Hamp.  526  ;  Farmers' 
552.  Bank  v.  Gettinger,  4  West  Virginia,  305 ; 

8  Pennell  v.  Grubb,  13  Penn.  State,     Seamon  v.  Bank,  Ibid.  339. 
652.  6  Ante,  §  685. 

[594] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.         §  688 

from  the  debt  which  he  acknowledges  he  owes  the  principal,  any 
demand  whicli  he  might  set  off  in  any  of  the  modes  allowed  either 
b}^  statute  or  common  law,  or  in  any  course  of  proceeding.^ 

The  following  intricate  and  interesting  case  occurred  in  that 
State.    A.,  B.,  C,  D.,  E.,  and  F.,  owners  of  the  ship  Bristol,  were 
summoned  as  garnishees  of  W.  &  W.,  to  whom  they  were  indebted 
in  the  sum  of  -$8,463.02.     But  it  appeared  that  W.  &  W.  were 
indebted  to  D.,  E.,  and  F.,  and  the  question  arose  Avhether  the 
latter  could  set  off  the  indebtedness  of  W.  &  W.  against  their 
respective   proportions  of  liability  as  owners   of  the   Bristol,  to 
W.  &  W.    The  court,  on  this  subject,  take  the  following  ground : 
"  This  right  of  set-off,  when  a  part  only  of  the  debtors  on  the 
one  side  are  creditors  on  the  other,  was  formerly  doubted  ;  but 
is  now  well  established  in  courts  both  of  law  and  equity.     The 
right  in  the  case  at  bar  does  not  depend  on  any  statute  provisions, 
but  arises  from  the  nature  of  the  suit  into  which  the  trustee  is 
thus  incidentally  introduced  as  a  party.     In  this  suit  he  is  called 
upon  to  answer  for  all  the  goods,  effects,  and  credits  of  the  de- 
fendants in  his  hands,  without  regard   to  the  nature  of  the  de- 
mands, or  to  the  form  of  action  in  which  they  would  be  recovered 
by  the  defendant,  and  even  if  they  should  be  of  several  different 
kinds,  requiring  different  forms  of  action.     On  the  other  hand, 
he  is  to  be  allowed  all  his  demands  against  the  defendant,  of 
which  he  could  avail  himself  in  any  form  of  action,  or  any  mode 
of  proceeding  between  himself  and  the  defendant ;  whether  by 
way  of  set-off  on  the   trial,  as  provided  by  our  statutes  ;  or  by 
setting  off  the  judgments  under  an  order  of  court;  or  by  setting 
off  the  executions  in  the  hands  of  the  sheriff,  as  is  also  provided 
by  statute.     If  this  were  not  so,  the  trustee  would  be  injured  by 
having  his  claims  thus  drawn  in,  to  be  settled   incidentally  in 
a  suit   between   strangers.     In  this  adjustment  of  their  mutual 
claims,  we  of  course  except,  on  both  sides,  all  claims  for  unliqui- 
dated damages  for  mere  torts."     The  court  then  take  as  the  basis 
of  its  judgment  the  entire  indebtedness  of  the  owners  of  the 
Bristol  to  W.  &  W.,  and  as  the  result  of  the  position  just  quoted, 
direct  to  be  deducted  from  that  indebtedness  all  that  was  due 
from  W.  &  W.  to  eitlier  of  the  six  owners.     But  here  another 
question  arose.     It  will  be  remembered  that  W.  &  W.  were  in- 
debted to  D.,  E.,  and  F.,  and  it  so  happened  that  this  indebtedness 

I  Smith  V.  Stearns,  19  Pick.  20. 

[595] 


§  688  garnishee's  right  of  defence     [chap,  xxxvi. 

was  not  to  either  D.,  E.,  or  F.,  alone,  but  to  each  of  them  jointly 
with  other  parties  not  concerned  in  the  proceedings.  Thus  D.  was 
owner  of  one-sixteenth  part  of  the  ship  India,  to  the  owners  of 
which  ship  W.  &  W.  were  indebted  in  the  sura  of  $5,382.76. 
So,  also,  was  E.  owner  of  the  same  part  of  the  same  ship.  F.  was 
owner  of  one-eighth  part  of  the  ship  Lydia,  to  the  owners  of 
which  ship  W.  &  W.  were  indebted  in  the  sum  of  $7,560.  Now, 
the  proportion  of  D.,  E.,  and  F.,  in  the  debt  of  the  Bristol  to 
W.  &  W.,  was  11,410.50.  The  proportion  of  D.  and  E.,  each, 
in  the  debt  of  W.  &  W.  to  the  owners  of  the  India  was  $333.29 ; 
and  the  proportion  of  F.  in  the  debt  of  W.  &  W.  to  the  owners 
of  the  Lydia  was  $945.  D.,  E.,  and  F.,  each  claimed  to  deduct 
from  the  $1,410.50  their  respective  proportionate  shares  of  the 
debts  due  from  W.  &  W.  to  the  owners  of  the  India  and  the 
owners  of  the  Lydia  as  aforesaid.  On  this  point  the  court  say  : 
"Now,  as  neither  D.,  E.,  nor  F.  could  have  brought  an  action 
against  W.  &  W.  for  the  j)roportion  due  to  each  of  them,  as  part- 
owners  of  the  ships  India  and  Lydia,  respectively,  it  seems  difficult 
to  set  off  that  proportion  against  the  claims  of  W.  &  W.  On  the 
other  hand,  it  is  an  invariable  principle,  in  every  suit  of  this 
kind,  that  the  trustee  shall  not  be  prejudiced  by  being  made  a 
party  in  a  suit  between  strangers ;  and  it  would  be  highly  preju- 
dicial and  injurious  to  him,  if  he  were  compelled  to  pay  money, 
as  due  to  one  of  the  parties  in  the  suit,  when  that  same  party 
was  indebted  to  him  in  another  sum  which  he  might  be  unable 
to  pay."  The  court  proceed  with  the  argument  of  the  case,  and 
finally  arrive  at  the  conclusion  expressed  in  the  following  lan- 
guage :  "  In  this  suit  a  demand  is  made  on  the  trustee,  without 
any  regard  to  technical  forms,  to  pay  whatever  effects  of  the 
defendant  he  may  have  in  his  hands  ;  and  those  effects  are  only 
what  remains,  after  deducting  all  that  he  could  retain  or  set  off, 
in  any  lawful  mode  of  adjustment  between  himself  and  the  defend- 
ant, without  regard  on  his  part  to  mere  technical  forms.  The  leg- 
islature certainly  intended  that  all  just  and  reasonable  allowances 
should  be  made  to  the  trustee,  to  protect  him  from  injury  ;  and  it 
is  our  business  to  make  the  forms  of  proceeding  yield,  in  every 
case,  to  the  principles  of  law  and  justice  ;  and  not  to  leave  the 
will  of  the  legislature  unaccomplished,  from  a  scrupulous  adhe- 
rence to  technical  rules.  The  parties  will  compute  the  amount 
due  from  each  of  the  trustees,  after  allowing,  according  to  these 
[596] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.         §  689 

principles,  the  set-offs  claimed  by  each  ;  and  the  judgments  will 
be  entered  accordingly."  ^ 

A  later  case  was  decided  on  principles  of  as  free  equity  as  that 
just  considered.  A  testator  devised  and  bequeathed  all  his  prop- 
erty to  W.jOn  condition  that  he  should  pay  all  the  testator's  debts, 
and  the  legacies  given  by  his  will ;  and  he  also  appointed  W. 
executor  of  his  will.  Among  the  legacies  was  one  of  $200  to  R., 
which  was  to  be  paid  in  two  years  after  the  testator's  decease. 
When  the  will  was  made,  the  testator  held  several  promissory 
notes  against  R.,  amounting  to  $322,  which  were  over  due.  W. 
accepted  the  devise  and  bequest  made  to  him,  but  declined  the 
trust  of  executor ;  and  administration  on  the  testator's  estate,  with 
the  will  annexed,  was  granted  to  a  third  person.  G.  brought  an 
action  against  R.,  and  summoned  W.  as  R.'s  trustee  ;  and  it  was 
held,  that  R.'s  notes,  though  payable  to  the  testator,  and  in  form 
to  be  collected  in  the  name  of  his  legal  representative,  were  really 
the  property  of  the  defendant,  and  were  a  valid  set-off,  in  the 
hands  of  W.,  against  the  amount  which  he  was  bound  as  legatee 
to  pay  to  R.,  and,  being  greater  in  amount  than  the  legacy  due  R. 
from  W.,  the  latter  was  not  liable  as  trustee.^ 

§  688  a.  While  the  garnishee's  right  of  set-off  is  ordinarily 
unquestionable,  he  may  sustain  such  a  relation  to  the  defendant, 
and  to  the  moneys  of  the  defendant  in  his  hands,  as  to  deprive 
him  of  that  right.  Thus,  where  a  president  of  a  corporation  was 
also  a  banker,  and  became  the  depositary  of  the  corporation's 
money,  while  he  held  a  large  amount  of  its  over-due  bonds  ;  and, 
to  avoid  being  charged  as  its  garnishee,  he  attempted  to  set  off 
some  of  those  bonds  against  his  liability  as  depositary  ;  it  was 
held,  that  "  it  would  be  a  breach  of  the  confidence  reposed  in 
him  as  depositary,  as  president,  and  as  co-corporator,  for  him  to 
take  such  an  advantage  of  his  position ; "  and  he  was  charged  as 
garnishee.^ 

§  689.  In  Vermont,^  and  in  Alabama,  it  has  been  held  that  a 
garnishee  cannot  avail  himself  of  an  equitable  claim  against  the 
defendant  by  way  of  set-off.  Therefore,  where  the  garnishee 
had  in  his  hands  a  sum  of  money  belonging  to  the  defendant, 

1  Hathaway  v.  Russell,  16  Mass.  473.  3  Yox  v.  Reed,  3  Grant,  81. 

^  Green  v.  Nelson,  12  Metcalf,  567;  *  Weller  y.  Welier,  18  Vermont,  55. 

Nickerson  v.  Chase,  122  Mass.  296. 

[597] 


§  G89  garnishee's  right  of  defence     [chap,  xxxvi. 

being  a  balance  of  the  proceeds  of  property  conveyed  to  him  in 
trust  to  secure  a  debt  due  to  him,  but  insisted  upon  his  riglit  to 
appropriate  that  balance  to  the  paj^ment  of  a  note  made  by  the 
defendant  to  S.  &  Co.,  and  by  S.  &  Co.  transferred  to  the  gar- 
nishee, but  without  indorsement,  whereby  only  the  equitable  title 
to  the  note  was  vested  in  the  garnishee,  while  the  legal  title  still 
remained  in  S.  &  Co.  ;  it  was  held  by  the  Supreme  Court  of  Ala- 
bama, that  the  garnishee  having  only  an  equity,  could  not  avail 
himself  of  it  as  a  set-off.  The  court  in  giving  their  opinion  use 
the  following  language :  "  It  is  certainly  true  that  the  plaintiff 
in  the  garnishment,  being  substituted  to  the  legal  rights  of  his 
debtor,  to  be  enforced  in  this  summary  way,  cannot  maintain 
this  proceeding  to  recover  an  equitable  demand,  —  one  upon 
which  the  debtor  could  not  have  maintained  his  action  at  law. 
The  same  principle  which  would  limit  the  plaintiff  to  a  legal 
ground  of  action  would  equally  apply  to  the  defendant :  he 
must  be  confined  to  such  defences  as  he  could  have  made,  had 
his  debtor,  instead  of  the  creditor  of  his  debtor,  instituted  legal 
proceedings  against  him.  This  would  seem  to  result  from  the 
want  of  adaptation  in  the  forms  of  the  court  of  law  to  do  com- 
plete equity  between  the  parties.  If  the  defendant  could  be 
allowed  to  set  up  an  equitable  defence,  while  the  plaintiff  was 
confined  down  to  his  legal  right  of  action,  there  would  seem  to 
be  a  want  of  mutuality  in  the  proceeding,  and  the  greatest  injus- 
tice might  sometimes  be  done.  The  plaintiff  might  have  an 
equitable  demand  which  Avould  countervail  that  set  up  by  the 
defendant,  yet  he  would  be  unable  to  subject  the  legal  demand, 
inasmuch  as  the  defendant  could,  and  he  could  not,  set  up  his 
equitable  one.  Besides,  in  many  cases  it  would  be  impossible  for 
the  court  of  law  to  adjust  properly  the  equities  between  the 
parties,  even  if  it  possessed  the  jurisdiction.  Such  a  practice  of 
blending  the  legal  and  equitable  jurisdiction  of  the  courts,  would, 
under  their  present  organization,  introduce  the  greatest  confu- 
sion, uncertainty,  and  difficulty.  The  view  we  take  is,  we  think, 
clearly  indicated  by  the  whole  tenor  of  our  decisions,  and  must 
be  sustained  so  long  as  the  jurisdiction  of  courts  of  equity  is  kept 
distinct  from  that  of  the  law  courts.  If  S.  &  Co.,  the  payees  of 
the  note,  retained  the  legal  title,  it  is  well  settled,  that,  had  the 
defendant  instituted  his  action  of  assumpsit,  to  recover  from  the 
garnishee  the  balance  due  after  satisfying  the  mortgage  deed, 
[598] 


CHAP.  XXXVI.]    AGAINST  HIS  LIABILITY  TO  DEFENDANT.     §  690  a 

the  latter  could  not  have  set  off  the  amount  of  the  note  to  S.  & 
Co.  in  such  suit,  however  strong  may  have  been  his  equity.  We 
think  he  stands  in  the  same  condition  with  respect  to  the  plain- 
tiff in  the  garnishment.  If  he  has  a  set-off  which  is  equitable^ 
he  must  assert  it  in  a  court  of  equity,  where,  for  aught  we  can 
know,  it  may  be  rebutted  or  repelled,  and  countervailed  by  supe- 
rior equities."  ^ 

§  689  a.  The  right  of  the  garnishee  to  deduct  from  his  liability 
to  the  defendant,  is  not  confined  to  matters  which  come  under  the 
technical  designation  of  set-off.  Any  damages  which  he  may  show 
himself  entitled  to  recover  of  the  defendant,  and  which  arise  out 
of  the  same  transaction  or  contract  in  respect  to  which  the  plain- 
tiff seeks  to  make  the  garnishee  liable,  may  be  so  deducted.  The 
garnishment  cannot  deprive  him  of  the  benefit  of  recoupment,  or 
any  like  defence.^  And  this  was  so  held,  notwithstanding  the 
existence  of  a  statute  which  excepted  from  the  privilege  of  de- 
duction by  a  garnishee,  by  way  of  set-off,  claims  which  he  had 
for  "unliquidated  damages  for  wrongs  or  injuries."  This  was 
considered  to  refer  to  independent  claims,  and  not  to  such  as  arise 
out  of  the  contract  under  which  the  garnishee  is  liable  to  the 
defendant.^  So,  where  A.  agreed  to  do  certain  work  for  B.  for 
a  stipulated  compensation,  and  B.  furnished  to  A.  materials  to  be 
used  in  the  work ;  and  B.  was  summoned  as  garnishee  of  A. ; 
and  it  appeared  that  A.,  without  B.'s  knowledge  or  consent,  had 
appropriated  to  his  own  use  part  of  the  materials  so  furnished, 
and  had  credited  B.  on  his  books  with  the  value  thereof;  and  B., 
on  hearing  of  it,  did  not  disavow  the  transaction ;  it  was  held, 
that  A.'s  act  might  be  considered  as  ratified  by  B.,  so  as  to  enti- 
tle him  to  set  off  the  value  of  the  materials  against  his  debt  to 
A.**  So,  where  A.  agreed  to  build  a  house  for  B.,  and  in  the 
contract  stipulated  to  pay  B.  a  certain  penalty  for  every  day  that 
the  completion  of  the  house  should  be  delayed  beyond  a  day 
named ;  and  before  the  house  was  completed  he  abandoned  the 
work  ;  and  after  its  abandonment  B.  was  summoned  as  garnishee 
of  A.,  and  in  his  answer  admitted  indebtedness  to  A.,  when  the 
work  was  abandoned,  but  claimed  to  recoup  against  it  the  pen- 

1  Loftin  V.  Shackleford,  17  Alabama,  Doyle  v.  Gray,  110  Ibid.  20G ;  Rankin  v. 
455  ;  Self  i;.  Kirkland,  24  Ibid.  275.  Simonds,  27  Illinois,  352. 

2  Powell   V.    Sammons,   31    Alabama,  '  Cota  v.  Mishow,  62  Maine,  124. 
652;  Faxon  v.  Mansfield,  2  Mass.  147;          *  Brown  v.  Brown,  55  New  Hamp.  74. 

[599] 


§  600        garnishee's   eight   of   defence,  etc.      [chap.  XXXVI. 

alty  stipulated  for  in  the  contract ;  the  right  to  such  recoupment 
was  sustained.^ 

§  690.  We  have  considered  only  those  cases  in  which  the  gar- 
nishee is  indebted  to  the  defendant.  His  position  is  different 
where  it  is  sought  to  charge  him  in  respect  of  property  of  the 
defendant  in  his  hands.  There  his  right  of  set-off  will  depend 
on  the  fact  whether  he  has  any  lien,  legal  or  equitable,  upon  the 
property,  or  any  right  as  against  the  defendant,  by  contract,  by 
custom,  or  otherwise,  to  hold  the  property,  or  to  retain  posses- 
sion of  it  in  security  of  some  debt  or  claim  of  his  own.  If  he 
has  a  mere  naked  possession  of  the  property  without  any  special 
property  or  lien ;  if  the  defendant  is  the  owner,  and  has  the  pres- 
ent right  of  possession,  so  that  he  might  lawfully  take  it  out  of 
the  custody  of  the  garnishee,  or  authorize  another  to  do  so  ;  then 
the  property  is  bound  by  the  attachment  in  the  hands  of  the 
garnishee,  and  he  has  no  greater  right  to  charge  it  with  a  debt 
of  his  own  by  way  of  set-off,  than  he  would  have  had  if  the 
goods  had  been  taken  into  custody  by  the  ofl&cer,  at  the  time  of 
the  attachment.^ 

1  Thompson  v.  Allison,  28  Louisiana  Annual,  733. 

2  Allen  V.  Hall,  5  Metcalf,  263. 
[600] 


CHAP.  XXXVII.]       garnishee's   RELATION,   ETC.  §  692 


CHAPTER    XXXVII. 

THE   garnishee's   RELATION   TO   THE   MAIN   ACTION. 

§  691.  When  one  is,  by  garnishment,  involuntarily  made  a 
party  to  a  suit  in  which  he  has  no  personal  interest,  he  should  be 
in  law  fully  protected  by  the  proceedings  against  him.  As  has 
been  often  remarked,  a  garnishee  is  a  mere  stake-holder  between 
the  plaintiff  and  the  defendant,  having  in  liis  hands  that  which 
the  law  may  take  to  pay  the  defendant's  debt,  in  the  event  of  a 
recovery  by  the  plaintiff,  or  which  he  may,  if  no  such  recovery 
be  had,  be  required  to  pay  or  deliver  to  the  defendant.  He 
stands  in  a  position  in  which  he  cannot  act  voluntarily,  without 
danger  to  his  own  interests.^  If  he  voluntarily  pay  his  debt  to 
the  defendant,  after  the  garnishment,  we  have  seen  that  such  a 
payment  will  not  protect  him  against  a  judgment  in  the  attach- 
ment suit.2  So,  on  the  other  hand,  a  voluntary  payment  to  the 
plaintiff  will  not  devest  the  defendant's  right  of  action  against 
him.  Any  payment  he  may  make  to  the  plaintiff,  without  the 
authority  or  consent  of  the  defendant,  will  be  regarded  in  law  as 
voluntary,  unless  made  under  legal  compulsion,  in  the  manner 
prescribed  by  law.  Hence  there  is  a  necessity,  as  well  as  great 
propriety,  that  the  garnishee  should  be  enabled  to  ascertain 
whether  the  proceeding  against  him,  if  carried  to  fruition,  will 
constitute  a  protection  to  him  against  a  second  payment  to  the 
defendant.3  This  it  will  not  do,  if  from  any  cause  the  judgment 
against  the  defendant  be  void.^  The  principles,  therefore,  con- 
nected with  the  garnishee's  relation  to  the  main  action,  will  now 
receive  attention. 

§  692.  This  subject  presents  itself  primarily  in  two  distinct  as- 
pects :  1.  Where  the  defendant  is  personally  served  with  process  ; 
and  2.  Where  the  proceeding  is  ex  parte,  without  any  service  of 

1  Ante,  §  451  h.  ^  Douglass  v.  Neil,  37  Texas,  528. 

2  Ante  §  674  a.  *  Haynes  v.  Gates,  2  Head,  598. 

[GOl] 


§  693  garnishee's  relation,  etc.     [chap,  xxxvii. 

process  on,  or  appearance  by,  tlie  defendant,  and  where  jurisdic- 
tion is  acquired  over  him  tlirougli  an  attachment  of  his  property. 

In  the  first  case,  the  jurisdiction  obtains  through  the  service  of 
the  proces:^  on  the  defendant :  tlie  attachment  is  not  the  founda- 
tion of  the  jurisdiction,  but  a  provisional  remedy  allowed  to  the 
plaintiff  for  the  purpose  of  securing  his  demand. 

In  the  second  case,  tlie  attachment  is  the  basis  of  the  jurisdic- 
tion. If  it  be  issued  without  legal  authority,  any  proceedings 
under  it  are  coram  non  judice  and  void. 

In  the  former  case,  though  the  attachment  were  illegally 
issued,  yet  it  is  the  privilege  of  the  defendant  alone  to  take  ad- 
vantage of  it,  and  if  he  waive  the  illegality,  and  the  effects  in 
the  garnishee's  hands  are  subjected  to  the  payment  of  his  debt, 
the  defendant  is  concluded  by  the  judgment  of  the  court,  and 
cannot  afterwards  question  its  sufficiency  to  protect  the  gar- 
nishee.^ 

Where,  however,  the  defendant  is  not  personally  a  party  to  the 
proceeding,  it  is  different.  In  such  case  he  has  a  right  after- 
wards to  know  that  his  property  has  been  taken  conformably  to 
law  ;  and  if  it  be  not  so  taken,  his  interest  in  it  is  not  devested. 
If  taken  by  a  court  of  competent  jurisdiction,  upon  a  legal  case 
presented  for  the  exercise  of  its  jurisdiction,  though  the  pro- 
ceedings be  irregular,  and  therefore  voidable,  they  will  be  conclu- 
sive upon  him  until  reversed,  and  any  rights  of  property  acquired 
through  them  will  be  sustained.  But  if  the  court  have  no  juris- 
diction of  the  subject-matter,  or  if  jurisdiction  be  exercised  with- 
out any  legal  foundation  being  laid  for  it,  the  whole  proceeding 
is  void,  and  the  defendant's  property  is  not  alienated  through  it. 
His  rights  exist,  to  every  intent,  as  if  the  proceeding  had  never 
taken  place. ^ 

§  693.  From  these  general  propositions  the  following  conclu- 
sions are  drawn :  1.  Where  the  defendant  is  personally  before 
the  court,  the  garnishee  is  not  interested  either  in  the  juris- 
dictional legality  of  the  proceedings,  or  in  their  practical  regu- 
larity as  against  the  defendant ;  and  2.  Where  the  defendant  is 
not  personally  before  the  court,  the  garnishee  is  concerned  only 

1  Featherston  v.  Compton,  3  Louisiana  Annual',  380 ;  Washburn  v.  N.  Y.  &  V. 
M.  Co.,  41  Vermont,  50. 

2  Ante,  §§  87  a,  87  b,  87  c,  88. 

[6U2] 


CHAP.  XXXVII.]       garnishee's   RELATION,    ETC.  §  696 

in  the  question  of  jurisdiction  ;  for  if  that  has  attached,  and  the 
judgment  of  the  court  will  be  conclusive  as  to  the  rights  of  jjrop- 
erty  acquired  through  the  attachment,  he  will  be  fully  protected 
by  a  payment  made  by  him  while  the  proceedings  stand  in  force. 

§  694.  But  though,  where  the  defendant  is  before  the  court  in 
person,  the  garnishee  is  not  concerned  in  the  question  of  juris- 
diction over  him,  yet  he  is  directly  interested  in  the  question  of 
jurisdiction  over  himself.  The  court  may  have  power  to  hear  and 
determine  the  main  action,  but  none  over  the  garnishee  ;  in  which 
case  if  th§  garnishee  submit  to  the  jurisdiction,  and  make  pay- 
ment under  it,  it  will  avail  him  nothing.  Thus,  if  the  law,  as  in 
Massachusetts,  declare  that  no  person  shall  be  garnished  in  an 
action  of  replevin,  or  in  an  action  on  the  case  for  malicious  prose- 
cution, or  for  slander,  or  in  an  action  of  trespass  for  assault  and 
battery,  and  yet  a  garnishee  be  summoned  in  such  an  action,  if 
he  submit  to  the  jurisdiction,  it  will  be  in  his  own  wrong.  But 
if  the  garnishee  raise  the  question  of  jurisdiction,  and  it  is 
decided  against  him,  and  the  court  proceeds  to  assert  its  jurisdic- 
tion by  rendering  judgment  against  him,  a  compulsory  payment 
under  that  judgment  will  protect  him  against  a  subsequent  action 
by  the  attachment  defendant.^ 

§  695.  It  follows  hence,  that  a  garnishee  must,  for  his  own 
protection,  inquire,  first,  whether  the  court  has  jurisdiction  of 
the  defendant,  and  next,  whether  it  has  jurisdiction  of  himself. 
If  the  jurisdiction  exists  as  to  both,  he  has  no  concern  as  to  the 
eventual  protection  which  the  judgment  of  the  court  will  afford 
him  ;  it  will  be  complete. 

If  the  court  has  jurisdiction  of  the  defendant,  and  the  gar- 
nishee wishes  to  question  its  right  to  proceed  against  himself,  he 
must  do  so  in  limine :  if  he  answer,  and  judgment  be  rendered 
against  him,  and  he  remove  the  case  by  certiorari  to  a  higher 
court,  it  was  held  in  Alabama,  that  he  cannot  in  that  court  object 
to  the  steps  taken  in  the  inferior  court  to  charge  him  as 
garnishee.'^ 

§  696.  Such  are  the  principles  which  are  considered  to  govern 
this  subject.     We  will  briefly  present  their  operation,  as  exhibited 

1  Wyatt's  Adm'r  v.  Rambo,  29  Ala-     See  National  Bank  v.  Titsworth,  73  lUi- 
bama,  510  ;  Gunn  v.  Howell,  35  Ibid.  144.     nois,  591. 
■''  Gould  V.  Meyer,  36  Alabama,  565. 

[603] 


§  696  garnishee's  relation,  etc.     [chap,  xxxvii. 

in  the  reported  cases.  In  Mississippi,  the  statute  declared  that 
"  every  attachment  issued  without  bond  and  affidavit  taken  and 
returned,  is  illegal  and  void,  and  shall  be  dismissed."  There,  it 
Avas  held,  upon  writ  of  error  sued  out  by  a  garnishee,  not  only 
that  a  judgment  against  a  garnishee,  where  such  bond  and  affi- 
davit had  not  been  taken  and  returned,  was  erroneous,  because 
the  proceedii]gs  were  illegal  and  void  ;  ^  but  that  such  a  judg- 
ment was  no  bar  to  a  subsequent  action  by  the  defendant  against 
the  garnishee.^  In  Indiana,  a  judgment  rendered  by  a  justice  of 
the  peace  against  an  executor,  as  garnishee,  was  decided  to  be 
no  protection  to  him,  because  the  statute  prohibited  a,  justice  of 
the  peace  from  exercising  jurisdiction  in  any  action  against  an 
executor. 2  In  Alabama,  on  error  by  the  garnishee,  a  judgment 
against  him  was  reversed,  because  the  officer  who  issued  the  at- 
tachment had  no  jurisdictional  right  to  issue  it,  and  the  attach- 
ment was  therefore  void.*  In  Tennessee,  it  was  decided  that  a 
garnishee  might  plead  in  abatement  that  neither  the  plaintiff  nor 
the  defendant  was  a  citizen  of  that  State,  in  which  state  of  case 
the  court  had  no  jurisdiction.^  In  Louisiana,  it  was  held,  that  a 
garnishee  might  plead  that  the  law  under  which  the  proceeding 
against  the  defendant  was  conducted  had  been  repealed,  and 
therefore  that  the  court  was  without  jurisdiction.^  In  Kentucky, 
a  judgment  against  a  garnishee  in  an  attachment  proceeding, 
instituted  contrary  to  law,  in  a  county  not  the  defendant's 
residence,  and  in  which  he  had  not  resided,  was  no  protection  to  the 
garnishee.''  In  Missouri,  it  was  held,  in  a  garnishment  proceed- 
ing under  execution,  that  the  garnishee  might  resist  his  liability  on 
the  ground  that  the  judgment  on  which  the  execution  was  issued 
was  void.^  In  Vermont,  it  was  held,  that  where  there  was  no  ser- 
vice of  process  upon  the  defendant,  (without  which  there  could  be 
no  judgment  lawfully  rendered  against  him),  the  garnishee  was 
entitled  to  move  for  the  dismissal  of  the  whole  proceeding.^  In 
Ohio,  where  the  statute  provides  that  an  attachment  shall  not  be 

1  Oldham    v.    Ledbetter,    1     Howard  ^  Webb  v.  Lea,  6  Yerger,  473. 
(Mi.),   43;   Berry   v.   Anderson,   2   Ibid.  ^  Featherston  t'.  Compton,  8  Louisiana 
649 ;    Ford  v.  Woodward,   2   Smedes   &     Annual,  285. 

Marshall,  260.  ^  Robertson  v.  Roberts,  1  A.  K.  Mar- 

2  Ford   V.   Hurd,  4   Smedes   &   Mar-     shall,  247. 

shall,  683.  8  Smith  v.  McCutchen,  38   Missouri, 

3  Harmon  iJ.Birchard,  8  Blackford,  418.     415. 

*  Dew   V.   Bank  of  Alabama,  9  Ala-  ^  Washburn  v.  N.  Y.  &  V.  M.  Co.,  41 

bama,  323.  Vermont,  50. 

[604] 


CHAP.  XXXVII.]      garnishee's   RELATION,    ETC. 


§696 


granted  on  the  ground  of  the  non-residence  of  the  defendant, 
"  for  any  claim  other  than  a  debt  or  demand  arising  upon  con- 
tract, judgment,  or  decree  ;  "  in  a  suit  based  solely  on  a  breach  of 
duty,  without  averring  that  the  duty  arose  by  contract,  it  was 
held,  that  no  jurisdiction  of  the  non-resident  defendants  was  ac- 
quired; that  a  garnishee  therein  was  not  bound  to  answer;  and 
that  no  action  could  be  maintained  (under  the  law  of  that  State 
authorizing  such  a  proceeding)  against  the  garnishee  for  refusing 
to  answer.^  The  obvious  principle  upon  which  these  and  all 
similar  cases  stand  is,  that,  as  a  judgment  against  a  garnishee 
must  be  founded  upon  a  valid  judgment  against  the  defendant, 
there  can  be  no  such  foundation  where  the  judgment  against  the 
defendant  is  unauthorized  and  void.^ 

In  Maryland,  it  is  the  right  of  the  garnishee,  not  only  to  con- 
test, at  any  stage  of  the  proceeding,  the  jurisdiction  of  the  court 
over  the  defendant,  because  of  the  insufficiency  of  the  affidavit,^ 
but  to  dispute  the  truth  of  the  ground  upon  which  the  attach- 
ment issued,*  and  even  to  take  advantage  of  irregularities  in  the 
proceedings  against  the  defendant.^ 


1  Pope  V.  Hibernia  Ins.  Co.,  24  Ohio 
State,  481. 

2  Pierce  v.  Carleton,  12  Illinois,  358  ; 
Atcheson  v.  Smith,  3  B.  Monroe,  502; 
Wliiteliead  v.  Henderson,  4  Sniedes  & 
Marsliall,  704;  Matthews  v.  Sands,  29 
Alabama,  136 ;  Flash  v.  Paul,  Ibid.  141 ; 
Uesha  v.  Baker,  3  Arkansas,  509 ;  Love- 
joy  V.  Albree,  33  Maine,  414 ;  Edrington 
V.  Allsbrooks,  21  Texas,  186 ;  Greene  v. 
Tripp,  11  Rhode  Island,  424. 

3  Shivers  v.  Wilson,  5  Harris  &  John- 
son, 130  ;  Yerby  v.  Lackland,  6  Ibid.  446  ; 
Bruce  v.  Cook,  6  Gill  &  Johnson,  345. 
In  the  first  of  these  cases  the  court  say  : 
"  No  position  in  law  is  more  clearly  es- 
tablished, than  that  a  defendant  in  a 
cause,  before  a  court  of  general  jurisdic- 
tion, must,  if  he  wishes  to  avail  himself 
of  the  disability  of  the  plaintiff  to  sue, 
do  so  by  a  plea  in  abatement ;  and  no 
principle  of  law  is  more  evident,  than 
that  where  the  tribunal  is  of  a  limited 
jurisdiction,  or  the  proceedings  are  par- 
ticularly described  by  a  statute  made  on 
tlie  subject,  that  course  of  procedure, 
80  described,  must,  on  the  face  of  the 
record,  appear  to  liave  been,  if  not  liter- 


ally, at  least  substantially,  complied 
with;  or  the  case  must  by  the  proceed- 
ings disclose  itself  to  be  within  the  lim- 
ited jurisdiction.  It  follows,  from  the 
preceding  principles,  that  the  decision  of 
the  court  below  [which  in  effect  quashed 
the  attachment  and  discharged  the  gar- 
nishee] must  be  sustained,  if  it  had  but 
a  limited  jurisdiction,  or  if  its  course  of 
proceeding  was  of  a  circumscribed  de- 
scription, unless,  on  the  ftice  of  the  record, 
the  case  shall  appear  to  have  been  within 
the  jurisdiction,  or  the  course  of  pro- 
ceeding directed  by  law  to  have  been 
substantially  complied  with.  .  .  .  The 
record  before  the  court  in  this  case,  in 
no  part  of  it  brings  the  plaintiff  within 
that  description  of  persons  who  had  a 
right  to  issue,  or  cause  the  attachment 
to  have  issued.  The  right  to  condemn 
the  property  in  favor  of  such  a  plaintiff 
is  by  no  law  vested  in  the  court  before 
whom  the  cause  was  tried,  or  in  any 
other  court." 

4  Barr  v.  Perry,  3  Gill,  313. 

5  Stone  V.  Magruder,  10  Gill  &  John- 
son, 383;  Clarke  v.  Meixsell,  29  Mary- 
land, 221. 

[605] 


§697 


garnishee's   relation,    etc.       [chap.  XXXVII. 


§  697.  When,  however,  the  jurisdiction  of  the  court  over  both 
the  defendant  and  the  garnishee  has  attached,  the  right  of  the 
Litter  to  inquire  into  or  interfere  with  the  proceedings  in  the  main 
action  is  at  an  end ;  for  all  that  he  is  interested  in  is,  that  the 
proceedings  against  himself  shall  protect  him  against  a  second 
payment.  That  they  will  do  so,  though  there  be  in  them  errors 
and  irregularities  for  which  the  defendant  might  obtain  their  re- 
versal, there  can  be  no  doubt.^  It  has,  therefore,  been  always 
held,  that  a  garnishee  cannot  avoid  or  reverse  a  judgment  against 
him,  on  account  of  mere  irregularities  in  the  proceedings  in  the 
main  action.  They  affect  only  the  defendant,  who  alone  can 
take  advantage  of  them.^  Nor  can  he  traverse  the  affidavit  on 
which  the  attachment  issued,  where  the  defendant  was  served 
with  process,  and  did  not  traverse  it ;  ^  nor  can  he  inquire  into 
the  merits  of  the  cause,  as  between  the  plaintiff  and  the  defend- 
ant ;  ^  nor  is  he  required   to   make  a  defence  on  behalf  of  the 


1  Atcheson  v.  Smith,  3  B.  Monroe, 
502 ;  Lomerson  v.  Hoffman,  4  Zabriskie, 
674 ;  Pierce  v.  Carleton,  12  Illinois,  358 ; 
Houston  V.  Walcott,  1  Iowa,  8G ;  Steb- 
bins  V.  Fitcli,  1  Stewart,  180 ;  Parmer  v. 
Ballard,  3  Stewart  &  Porter,  326 ;  Thomp- 
son V.  Allen,  4  Ibid.  184  ;  Gunn  v.  Howell, 
35  Alabama,  144  ;  O'Connor  v.  O'Connor, 
2  Grant,  245 ;  Sclioppenliast  v.  Bollman, 
21  Indiana,  280 ;  Ohio  &  M.  R.  W.  Co. 
V.  Alvey,  43  Ibid.  180. 

2  Stebbins  v.  Fitch,  1  Stewart,  180; 
Parmer  v.  Ballard,  3  Ibid.  326 ;  Thomp- 
son V.  Allen,  4  Stewart  &  Porter,  184; 
Smith  V.  Chapman,  6  Porter,  365 ;  St. 
Louis  Perpetual  Ins.  Co.  v.  Cohen,  9 
Missouri,  421;  Houston  v.  Walcott,  1 
Iowa,  86 ;  Matheny  v.  Galloway,  12 
Smedes  &  Marshall,  475 ;  Whitehead  v. 
Henderson,  4  Ibid.  704  ;  Erwin  t;.  Heath, 
50  Mississippi,  795 ;  Flash  v.  Paul,  29 
Alabama,  141 ;  Camberford  v.  Hall,  3 
McCord,  345;  Foster  v.  Jones,  1  Ibid. 
116;  Chambers  v.  McKee,  1  Hill  (S.  C), 
229 ;  Lindau  v.  Arnold,  4  Strobhart,  290 ; 
Cornwell  v.  Hungate,  1  Indiana,  156; 
White  V.  Casey,  25  Texas,  552.  In  Ser- 
geant on  Attachment,  100,  it  is  said  : 
"  On  this  plea  oi  nulla  bona,  the  garnishee 
may  take  advantage  of  the  irregularity 
of  the  plaintiff's  proceedings  in  entering 
judgment  against  the  defendant  in  the 
attachment,    without    having    executed 

[606] 


a  writ  of  inquiry,  when  the  declara- 
tion was  in  Assumpsit ; "  and  reference 
is  made  to  the  case  of  Pancake  v.  Har- 
ris, 10  Serg.  &  Rawle,  109.  It  is  con- 
ceived that  his  statement  is  not  sus- 
tained by  the  case  as  reported.  It  does 
not  appear  that  the  garnishee  made  the 
point  which  controlled  the  decision  ;  but 
we  are  authorized  to  infer  that  the  court, 
ex  mero  itiotu,  ruled  the  plaintiff  out,  on  a 
point  of  practice.  The  plaintiff  had  not 
perfected  his  judgment  against  the  de- 
fendant, by  an  ascertainment  of  the 
amount,  without  which  it  was  clearly  im- 
practicable for  a  judgment  to  be  rendered 
against  the  garnishee ;  since  it  is  well 
settled,  that  a  judgment  against  the  de- 
fendant is  an  indispensable  prerequisite 
to  a  judgment  against  the  garnishee.  It 
was  expressly  on  the  ground  that  the 
plaintiff  had  not  perfected  his  judgment 
against  the  defendant,  or,  in  other  words, 
had  obtained  only  an  interlocutory,  and 
not  a  final,  judgment,  that  the  decision 
was  given. 

»  Douglass  V.  Neil,  37  Texas,  528. 

*  Hanna  v.  Lauring,  10  Martin,  563 ; 
Kimball  v.  Plant,  14  Louisiana,  511 ; 
Frazier  v.  Willcox,  4  Robinson  (La), 
517  ;  Erode  v.  J'iremen's  Ins.  Co.,  8  Ibid. 
244 ;  Planters'  and  Merchants'  Bank  v. 
Andrews,  8  Porter,  404. 


CHAP.  XXXVII.]       garnishee's   RELATION,    ETC.  §  698 

defendant  against  the  plaintiff's  demand ;  ^  nor,  after  judgment 
against  the  defendant,  can  he  show  that  the  plaintiff  had  no  just 
demand  against  the  defendant,  or  that  the  judgment  ought  to  be 
altered  or  reversed.^  Nor  has  he  any  such  relation  to  the  main 
action  as  will  entitle  him,  after  judgment  has  been  rendered 
against  him,  to  interfere  in  any  arrangement  between  the  plain- 
tiff and  defendant.  He  is  not  an  assignee  of  the  judgment 
against  the  defendant,  nor  has  he  any  lien  upon  it ;  but  in  rela- 
tion to  it  stands  as  an  entire  stranger.^  But  where  the  judgment 
against  the  defendant  is  invalid,  the  garnishee  may,  in  any  stage 
of  the  proceedings  prior  to  judgment  against  himself,  take  advan- 
tage of  that  invalidity  to  prevent  such  judgment.* 

§  698.  In  Louisiana,  however,  a  garnishee  was  allowed  to  show, 
as  a  reason  why  judgment  should  not  be  rendered  against  him, 
that,  before  judgment  was  rendered  against  the  defendant,  the 
defendant  was  dead.  This  was  upon  the  ground  that  the  attach- 
ing creditor  would,  in  such  case,  if  the  garnishee  should  be 
charged,  obtain  a  preference  over  other  creditors  of  the  deceased, 
not  authorized  by  the  laws  of  that  State.^ 

1  Moore  v.  C,  R.  I.,  &  P.  R.  Co.,  43  3  Braynard  v.  Burpee,  27  Vermont, 
Iowa,  385.  616. 

2  Woodbridge  v.  Winthrop,  1  Root,  *  Thayer  v.  Tyler,  10  Gray,  164; 
557  ;  Heffernan  v.  Grymes,  2  Leigh,  512;  Pratt  v.  Cunliff,  9  Allen,  90;  Woodfolk 
Lee  V.  Palmer,  18  Louisiana,  405 ;  Bank  v.  Whitworth,  5  Coldwell,  561 ;  Erwin  v. 
of  Northern  Liberties  v.  Munford,  3  Grant,  Heath,  50  Mississippi,  795. 

232  ;  Hodges   v.    Graham,   25  Louisiana  ^  AUard  v.  DeBrot,  15  Louisiana,  253. 

Annual,  365. 

[607] 


§700  WHERE  ATTACHMENT  IS   A  DEFENCE.    [CHAP.  XXXVII. 


CHAPTER    XXXVIII. 

WHERE  ATTACHMENT  IS  A  DEFENCE,  AND  THE  MANNER  OF 

PLEADING  IT. 

§  699.  The  operation  of  an  attachment  against  a  garnishee  is 
compulsory.  He  has  no  choice  but  to  pay,  in  obedience  to  the 
judgment  of  the  court  to  whose  jurisdiction  he  has  been  sub- 
jected ;  and  the  exercise  of  that  jurisdiction  effects  a  confiscation, 
for  the  plaintiff's  benefit,  of  the  debt  due  from  the  garnishee  to 
the  defendant.  In  this  proceeding  it  is  an  invariable  rule,  that 
the  garnishee  shall  not  be  prejudiced,  or  placed  in  any  worse  sit- 
uation than  he  would  have  been  in  if  he  had  not  been  subjected 
to  garnishment ;  that  is,  if  obliged,  as  garnishee,  to  pay  to  the 
plaintiff  the  debt  he  owed  to  the  defendant,  he  shall  not  be  com- 
pelled again  to  pay  the  same  debt  to  the  defendant.  When, 
therefore,  he  is  sued  for  that  debt,  either  before  or  after  he  has 
been  summoned  as  garnishee,  he  must  be  allowed  to  show  that 
he  has  been,  or  is  about  to  be,  made  liable  to  pay,  or  has  paid,  the 
debt,  under  an  attachment  against  the  defendant,  in  which  he  has 
been  charged  as  garnishee.  To  what  extent  this  defence  will 
avail  him,  and  how  he  may  take  advantage  of  it,  will  constitute 
the  subject  of  the  present  chapter,  and  will  be  considered  in 
reference,  I.  To  the  case  of  garnishment  prior  to  or  pending  suit 
brought  by  the  defendant ;  and,  II.  To  the  case  of  suit  brought 
after  judgment  against  the  garnishee. 

§  700.  I.  Where  the  Garnishment  is  prior  to  or  pending  Suit 
brought  hy  Defendant.  In  England,  the  doctrine  has  long  been, 
that  where  one  has  been  summoned  as  garnishee,  and  the 
defendant  in  the  attachment,  before  judgment  of  condemnation 
of  the  debt,  sues  the  garnishee  for  that  debt,  the  latter  may  plead 
the  attachment  in  abatement ;  ^  but  not  in  bar,  until  judgment  be 
recovered  against  him.^     It  is  no  case  for  an  interpleader.^ 

1  Brook  V.  Smith,  1  Salkeld,  280.  3  Evans   v.  Matlock,  8  Philadelphia, 

2  Nathan  v.  Giles,  6  Taunton,  558.  271. 

[608] 


CHAP.  XXXVin.]      AND   THE   MANNER   OF   PLEADING   IT.         §  700 

The  courts  in  this  country  have  generally  taken  the  same  view. 
The  question  early  came  up  in  New  York,  in  a  case  where  a  citi- 
zen of  Baltimore  was  summoned  as  garnishee  at  that  place,  and 
afterwards,  on  going  to  New  York,  was  sued  by  the  defendant  in 
the  attachment  suit,  and  pleaded  the  attachment.  It  was  agreed 
in  the  case,  that  if  the  court  should  consider  the  plea  good,  either 
in  abatement  or  bar,  the  plaintiff  should  be  nonsuited.  Kent, 
C.  J.,  after  noticing  the  English  decisions,  said  :  "  If  we  were  to 
disallow  a  plea  in  abatement  of  the  pending  attachment,  the  de- 
fendant would  be  left  without  protection,  and  be  obliged  to  pay 
the  money  twice :  for  we  may  reasonably  presume,  that  if  the 
priority  of  the  attachment  in  Maryland  be  ascertained,  the  courts 
in  that  State  would  not  suffer  that  proceeding  to  be  defeated  by 
the  subsequent  act  of  the  defendant  going  abroad  and  subjecting 
himself  to  a  suit  and  recovery  here. 

"  The  present  case  affords  a  fair  opportunity  for  the  settlement 
and  application  of  a  general  rule  on  the  subject.  It  is  admitted 
by  the  case  that  the  plaintiff  owes  a  large  debt  to  the  attaching 
creditors ;  and  that  the  defendant  is  a  resident  of  Maryland. 
There  is  then  no  ground  to  presume  any  collusion  between  the 
defendant  and  the  creditors  who  attached ;  and  there  is  no  pre- 
tence that  the  plaintiff  was  not  timely  notified  of  the  pendency 
of  the  attachment,  or  that  the  attachment  is  not  founded  on  a 
bond  fide  debt,  equal  at  least  in  amount  to  the  one  due  from  the 
defendant.  If  the  force  and  effect  of  a  foreign  attachment  is, 
then,  in  any  case  to  be  admitted  as  a  just  defence,  it  would  be 
difficult  to  find  a  sufficient  reason  for  overruling  a  plea  in  abate- 
ment in  the  present  case."  ^ 

The  same  views  have  been  expressed  by  the  Superior  Court  of 
New  Hampshire,^  by  the  Supreme  Courts  of  Maine,^  Pennsylva- 
nia,^ Michigan,^  and  lowa,^  by  the  Court  of  Appeals  of  Maryland,''' 
by  the  Circuit  Court  of  the  United  States  for  the  Third  Circuit,^ 
and  by  the  Supreme  Court  of  the  United  States.^ 

1  Embree  v.  Hanna,  5  Jolins.  101.  ^  ciise  v.  Freeborne,  27  Iowa,  280. 

2  llaselton  v.  Monroe,  18  New  Hamp.  ''  Brown  v.  Somerville,  8  Maryland, 
598.                                                                   444. 

8  Ladd  V.  Jacobs,  64  Maine,  347.  ^  Cheongwo   v.  Jones,  3  Washington 

*  Fitzgerald    v.    Caldwell,    1    Yeates,  C.  C.  359. 

274 ;    Irvine   v.   Lumbermen's    Bank,    2  ^  Wallace   v.   McConnell,    13   Peters, 

Watts  &  Sergeant,  190 ;  Adams  v.  Avery,  136;  Mattingly  v.  Boyd,  20  Howard  Sujj. 

2  Pittshurgli,  77.                                         '  Ct.  128. 


5  Near  v.  Mitchell,  23  Michigan,  382. 


39  [609] 


§  701  WHERE   ATTACHMENT   IS   A   DEFENCE.    [CHAP.  XXXVIII. 

§  701.  In  Massachusetts,  the  pendency  of  an  attachment  is  no 
cause  to  abate  tlie  writ ;  for  non  constat  that  judgment  will  ever 
be  rendered  in  the  attachment  suit ;  but  it  is  a  good  ground  for  a 
continuance  while  the  process  is  pending.^ 

This  view  has  been  adopted  in  Louisiana,  in  a  case  where  the 
garnishee's  answer  disclosed  the  existence  of  a  prior  attachment, 
in  another  State,  of  his  property,  in  a  proceeding  against  him  as 
garnishee  of  the  same  defendant.  The  cases  are  not  precisely 
parallel,  but  the  principle  involved  is  the  same.  The  court 
ordered  a  stay  of  further  proceedings  against  the  garnishee  until 
the  decision  of  the  prior  attachment.^  In  Vermont,  the  pending 
garnishment  cannot  be  pleaded  in  abatement ;  but  the  court 
gives  judgment  against  the  garnishee  in  favor  of  his  creditor,  — 
the  attachment  defendant,  —  with  sta}^  of  execution  until  the 
garnishee  is  released  from  the  garnishment.^ 

The  Supreme  Court  of  Alabama  once  sustained  a  plea  in  abate- 
ment, which  went  to  the  writ;^  but  afterwards  fell  into  the  doc- 
trine declared  in  Massachusetts,  and  sustained  this  position  in  the 
following  language :  "If  it  be  admitted  that  a  pending  attach- 
ment may  be  pleaded  in  abatement,  it  by  no  means  follows  that 
it  should  be  pleaded  in  abatement  of  the  writ.  In  general,  a 
plea  in  abatement  gives  a  better  writ,  and  in  such  a  case  the  ap- 
propriate conclusion  is,  a  prayer  of  judgment  of  the  writ,  and 
tliat  it  be  quashed.  But  where  matter  can  only  be  pleaded  in 
abatement,  and  yet  a  better  writ  cannot  be  given,  as  the  writ 
does  not  abate,  the  prayer  of  the  plea  is,  '  whether  the  court  will 
compel  further  answer.'  There  are  many  reasons  why  an  attach 
ment  pending  should  not  be  pleaded  in  abatement  of  the  writ. 
The  entertainment  of  such  pleas  would  lead  to  the  most  delicate 
and  embarrassing  questions  of  jurisdiction,  and  in  the  conflict  an 
error  committed  by  either  court  would  lead  to  the  injury  of  one 
of  the  parties  litigant.  Either  the  garnishee  might  be  compelled 
to  pay  the  debt  twice,  or  the  creditor  might  be  injuriously 
affected.  All  these  consequences  are  avoided  by  considering  it 
as  cause  for  suspending  the  action  of  the  creditor,  until  the  at- 
tachment  against   his   debtor   is    determined,   when    it   can    be 

1  Winthrop  v.  Carleton,  8  Mass.  456.        Spicer  v.   Spicer,  23  Ibid.  678 ;  Jones  v. 
•■2  Carroll    v.  McDonogh,   10    Martin,     Woocl,  30  Ibid.  2G8. 
609.  *  Crawford  v.  Clute,  7  Alabama,  157. 

3  Morton  v.  Webb,  7  Vermont,  123 ; 
[610] 


CHAP.  XXXVIII.]      AND   THE  IMANNER    OF   PLEADING  IT. 


701 


certainly  known  what  the  rights  of  the  parties  are.  When, 
therefore,  the  fact  of  an  attachment  pending  for  the  same  debt  is 
made  known  to  the  court,  where  the  creditor  of  the  garnishee 
has  brought  suit,  it  will  either  suspend  all  proceedings  until  the 
attachment  suit  is  determined,  or  render  judgment  with  a  stay  of 
execution,  which  can  be  removed,  or  made  perpetual,  in  whole  or 
in  part,  as  the  exigency  of  the  case  may  require.  And  as  this 
course  is  equally  safe,  and  productive  of  less  delay,  it  would 
seem  to  be  the  most  eligible."  ^  The  court  also  intimated  that 
such  a  stay  of  execution  would  be  directed  after  judgment,  not- 
withstanding an  omission,  or  an  ineffectual  attempt,  to  plead  the 
matter  in  abatement.^  In  Indiana,  it  was  considered  very  doubt- 
ful whether  a  pending  attachment  can  be  pleaded  in  abatement, 
and  the  court  manifested  a  disposition  to  concur  in  the  Alabama 
doctrine.3  In  California  that  doctrine  was  fully  concurred  in.* 
In  Georgia,  the  pendency  of  an  attachment  is  not  pleadable  in 


1  Crawford  v.  Slade,  9  Alabama,  887. 
See  Gallego  v.  Gallego,  2  Brockenbrough, 
285. 

2  Crawford  v.  Clute,  7  Alabama,  157  ; 
Crawford  v.  Slade,  9  Ibid.  887.  See 
Fitzgerald  v.  Caldwell,  4  Dallas,  251. 

'■>  Smith  V.  Blatchford,  2  Indiana,  184. 

4  McFadden  v.  O'Donnell,  18  Califor- 
nia, 160;  Pierson  v.  McCaliill,  21  Ibid. 
122;  McKeon  v.  MeDermott,  22  Ibid. 
667.  Such  are  the  decided  cases  on  this 
point.  It  cannot,  perhaps,  be  considered 
as  yet  definitively  settled  whether  a  plea 
in  abatement  will  lie  in  such  a  case.  My 
own  conviction  is,  that  such  a  plea  should 
not  be  entertained,  even  where  the  gar- 
nishment takes  place  before  the  institu- 
tion of  the  suit,  and  much  less,  after.  In 
addition  to  the  reasons  against  it,  above 
set  forth,  there  is  a  very  cogent  one  in 
the  fact  that  the  defendant's  interest  may 
seriously  suffer,  by  postponing  the  secur- 
ing of  the  garnishee's  debt  to  him,  until 
liis  litigation  with  the  plaintiff  is  termi- 
nated. The  garnishee  may  be  in  doubt- 
ful circumstances,  making  legal  proceed- 
ings against  him  necessary  for  securing 
the  demand  ;  or  he  may  be  about  to  re- 
move or  abscond  out  of  the  jurisdiction 
of  the  court,  or  to  dispose  of  his  property 
in  fraud  of  his  creditors,  justifying  an 
attachment  against  himself ;  and  yet,  if 
lie  may  plead  the  attachment  in  abate- 


ment of  a  suit  by  the  defendant  against 
him,  his  debt  to  the  defendant  may  be 
entirely  lost.  The  garnishee  can  be  in 
no  wise  injured  by  the  double  proceeding 
against  him  ;  for  no  court,  upon  being  in- 
formed in  a  proper  manner  of  the  fact  of 
the  two  proceedings,  would  hesitate  to 
take  such  measures  as  would  effectually 
secure  the  garnishee  against  double  lia- 
bility. This  might  be  easily  done,  by 
suffering  judgment  to  be  rendered  against 
him  in  the  suit,  if  that  were  in  a  condi- 
tion for  judgment  before  the  garnishment, 
and  the  money  to  be  collected  and  held 
subject  to  the  attachment.  Views  which 
would  sustain  those  here  expressed  were 
announced  by  the  Supreme  Court  of 
Vermont,  in  Hicks  v.  Gleason,  20  Ver- 
mont, 139,  where  it  was  held,  that  the 
defendant's  rights  to  the  effects  in  the 
garnishee's  hands  are  only  so  far  extin- 
guished as  to  prevent  his  making  any 
disposition  of  them  which  would  interfere 
with  their  subjection  to  the  payment  of 
the  plaintiff's  demand  ;  and  that  for  every 
purpose  of  making  any  demand  which 
may  be  necessary  to  fix  the  garnishee's 
liability  to  the  defendant,  or  of  securing 
it  by  legal  proceedings  or  otherwise,  the 
defendant's  rights  remain  unimpaired 
by  the  garnishment ;  but  can  be  exer- 
cised only  in  subordination  to  the  lien 
thereby  created. 

[611] 


§  702  WHERE   ATTACHMENT   IS   A   DEFENCE,    [CHAP.  XXXVIII. 

bar,  but  when  pleaded  will  justify  the  court  in  so  moulding  the 
judgment  as  to  stay  execution  for  a  sufficient  amount  of  the  debt 
to  protect  the  garnishee  against  a  double  payment.^ 

§  702.  In  England,  an  attachment  cannot  be  pleaded  jom/s  dar- 
rein continuance;  because  after  action  brought  upon  a  debt,  it 
cannot  be  attached  under  the  custom  of  London.^  The  Supreme 
Court  of  Pennsylvania  assigned,  no  doubt,  the  true  reason  why 
this  rule  obtained  in  England,  that  when  once  a  suit  has  been  in- 
stituted in  the  superior  courts  of  Westminster,  for  the  recovery 
of  a  debt  or  demand,  though  it  have  not  been  followed  by  a  judg- 
ment, the  inferior  courts  cannot,  by  issuing  an  attachment, 
prevent  the  plaintiff  from  proceeding. ^  In  this  country,  the 
question  turns  altogether  upon  the  point  whether  a  debt  in  suit 
can  be  attached.*  Wherever  the  affirmative  of  this  question  is 
held,  it  must  follow,  of  necessity,  that  an  attachment,  pending 
the  action,  may  be  pleaded  puis  darrein  continuance.  In  Alabama 
the  point  came  up  in  a  case  where  the  action  on  the  debt  and  the 
attachment  were  in  the  same  court,  and  the  plea  'was  sus- 
tained.^ But  where  the  action  and  the  attachment  were  in  courts 
of  different  jurisdictions  —  the  former  in  a  District  Court  of  the 
United  States,  and  the  latter  in  a  State  court  —  it  was  decided 
by  the  Supreme  Court  of  the  United  States  that  the  plea  was 
bad  on  demurrer.  In  the  opinion  of  that  court  on  this  point  the 
following  views  are  expressed :  "  The  plea  shows  that  the  pro- 
ceedings on  the  attachment  were  instituted  after  the  commence- 
ment of  this  suit.  The  jurisdiction  of  the  District  Court  of  the 
United  States,  and  the  right  of  the  plaintiff  to  prosecute  his  suit 
in  that  court,  having  attached,  that  right  could  not  be  arrested 
or  taken  awa}'  by  any  proceedings  in  another  court.  This  would 
produce  a  collision  in  the  jurisdiction  of  courts,  that  would  ex- 
tremely embarrass  the  administration  of  justice.  If  the  attach- 
ment had  been  conducted  to  a  conclusion,  and  the  money  recov- 
ered of  the  defendant,  before  the  commencement  of  the  present 
suit,  there  can  be  no  doubt  that  it  might  have  been  set  up  as  a 
payment  upon  the  note  in  question.  And  if  the  defendant  would 
have  been  protected  j9rc»  tanto^  under  a  recovery  had  by  virtue  of 

1  Shealy  v.  Toole,  56  Georgia,  210.  3  McCarty  v.  Emlen,  2  Yeates,  190. 

2  Priv.   Lond.   272;  3  Leonard,  210;  <  See  Chapter  XXXII. 
Palmer  v.  Hooks,  1   Ld.  Raymond,  727;  ^  Hitt  v.  Lacy,  3  Alabama,  104. 
Savage's  Case,  1  Salkeld,  291. 

[612] 


CHAP.  XXXVIII.]      AND   THE   MANNER    OF  PLEADING  IT.     §  703  h 

the  attachment,  and  could  have  pleaded  such  recovery  in  bar, 
the  same  principle  would  support  a  plea  in  abatement  of  an  at- 
tachment pending  prior  to  the  commencement  of  the  present 
suit.  The  attachment  of  the  debt,  in  such  case,  in  the  hands  of 
the  defendant,  would  fix  it  there,  in  favor  of  the  attaching  cred- 
itor, and  the  defendant  could  not  afterwards  pay  it  over  to  the 
plaintiff.  The  attaching  creditor  would,  in  such  case,  acquire  a 
lien  ujjon  the  debt,  binding  upon  the  defendant,  and  which  the 
courts  of  all  other  governments,  if  they  recognize  such  proceed- 
ings at  all,  could  not  fail  to  regard.  If  this  doctrine  be  well 
founded,  the  priority  of  suit  will  determine  the  right.  The  rule 
must  be  reciprocal ;  and  where  the  suit  in  one  court  is  com- 
menced prior  to  the  institution  of  proceedings  under  attachment 
in  another  court,  such  proceedings  cannot  arrest  the  suit ;  and 
the  maxim,  qui  prior  est  tempore,  potior  est  jure,  must  govern  the 
case."^ 

§  703.  Manifestly,  a  pending  attachment  should  have  no  effect 
upon  an  action  by  the  creditor  against  his  debtor,  unless  the  at- 
tachment acts  directly  on  the  latter,  and  not  intermediately 
through  another.  Therefore,  where  a  town  placed  money  in  the 
hands  of  its  agent,  to  be  paid  to  one  who  had  been  employed  by 
the  town,  and  before  it  was  paid  over  the  agent  was  garnished  in 
a  suit  against  the  party  to  whom  the  money  was  payable ;  which 
party  afterwards  brought  suit  against  the  town  for  the  sum  due 
him ;  it  was  held,  that  the  garnishment  of  the  agent  was  no  de- 
fence.^ 

§  703  a.  Equally  manifest  is  it  that  the  pendency  of  an  attach- 
ment is  no  defence  to  an  action  against  the  garnishee  by  an 
assignee  of  the  defendant,  to  recover  the  debt  in  respect  of  which 
it  is  sought  to  charge  the  garnishee.  Thus,  where  an  indorsee 
of  a  negotiable  promissory  note  sued  the  maker  thereof,  who 
pleaded  a  pending  garnishment  of  himself  in  an  action  against 
the  payee,  it  was  held  to  be  no  defence.^ 

§  703  h.  As  we  have  seen,  a  plaintiff  may,  by  garnishment,  at- 
tach a  debt  due  from  himself  to  the  defendant ;  *  but  this  will  not 

1  Wallace  v.  McConnell,  13  Peters,  136.  »  Mason  v.  Noonan,  7  Wisconsin,  609. 

2  Clark  V.  Great  Barrington,  11  Pick.  *  Ante,  §  543. 
260. 

[613] 


§  704  WHERE   ATTACHMENT  IS   A   DEFENCE,    [CHAP.  XXXVIII. 

antliorize  liim  to  plead  such  garnishment  either  in  abatement  or 
in  bar  of  a  suit  by  the  defendant  against  him  for  that  debt.  Thus, 
a  Rhode  Island  corporation  sued  B.  and  M.,  of  New  York,  in  the 
United  States  Circuit  Court  for  New  York ;  and  B.  and  M. 
pleaded,  that  before  that  suit  was  instituted  they  had  brought 
suit  in  the  Supreme  Court  of  New  York  against  the  corporation, 
and  had  therein  attached  the  debt  sued  for  by  the  corporation  ; 
whereby,  under  the  law  of  New  York,  all  sums  of  money  owing 
by  them  to  the  plaintiff  were  held  as  security  for  the  satisfaction 
of  such  judgment  as  they  might  recover  against  the  corporation. 
Upon  demurrer  this  plea  was  held  bad,  either  in  abatement  or  in 
bar ;  its  essential  vice  being,  that  it  sought  to  exclude  the  corpo- 
ration from  the  benefit  of  a  cross  action,  and  to  restrict  it  to  a 
defence  of  the  suit  instituted  by  B.  and  M.  against  it.  "  We 
are,"  said  the  court,  "  referred  to  no  case  in  which  a  defendant 
has  been  allowed  to  defeat  an  action  at  law  against  him  by  plead- 
ing the  existence  of  a  pending  suit  brought  by  himself  against 
his  adversai'y."  ^ 

§  704.  The  question  has  arisen,  whether  the  pendency  of  an 
attachment  relieves  the  garnishee  from  accountability  to  the  de- 
fendant, after  the  termination  of  the  attachment  suit,  for  interest 
on  his  debt  during  the  pendency  of  that  suit  ?  In  the  cognate 
question  of  the  liability  of  the  garnishee  to  have  judgment  ren- 
dered against  him,  as  such,  for  interest  on  his  debt,  we  have  seen 
that  if  there  is  no  contract  on  his  part  to  pay  interest  thereon,  he 
cannot  be  charged  therewith.^  The  same  rule  was  applied  in 
Massachusetts  to  his  liability  to  the  defendant  after  the  termina- 
tion of  the  attachment  suit.  It  was  there  held,  that  where  inter- 
est accrues  by  way  of  damages  for  the  non-payment  of  the  debt, 
it  cannot  be  recovered  by  the  defendant  of  the  garnishee  for  the 
period  of  time  that  the  attachment  suit  was  pending.  In  such 
case  he  is  in  no  fault  for  not  paying,  and  as  he  made  no  express 
agreement  to  pay  interest,  he  ought  not  to  be  charged  with  it. 
But  where  the  debt  is  one  bearing  interest,  the  interest  is  the 
debt  as  much  as  the  principal,  and  he  ought  to  pay  it.^ 

In  Pennsylvania,  in  cases  where  it  does  not  appear  that  the 
debt  bore  interest,  it  was  held  to  be  clearly  the  general  rule,  that 

1  New  England  Screw   Co.  v.  Bliven,  *  Oriental  Bank  v.  Treniont  Ins.  Co., 

3  Blatcliford,  240.  4  Met(;alf,  1 ;  Bickford  v.  Rice,  105  Mass. 

■^  Ante,  §  665.  340;  Huntress  v.  Burbank,  111  Ibid.  213. 

[614] 


CHAP.  XXXVTIL]      and   THE   MANNER    OF   PLEADING   IT.         §  705 

a  garnishee  is  not  liable  for  interest  while  he  is  restrained  from 
the  payment  of  his  debt  by  the  legal  operation  of  an  attachment; 
unless  it  should  appear  that  there  is  fraud,  or  collusion,  or 
unreasonable  delay  occasioned  by  the  conduct  of  the  garnishee.^ 
It  was,  therefore,  held,  that  an  attachment  might  be  pleaded  in 
bar  of  interest  on  the  debt,  during  the  pendency  of  the  attach- 
ment, although  the  garnishee  had  not  paid  any  thing  under  the 
attachment,  and  it  had  been  discontinued.^  This  rule  proceeds 
upon  the  presumption,  that  the  garnishee,  being  liable  to  be 
called  upon  at  any  time  to  pay  the  money,  has  not  used  it.  But 
where  one  attaches  money  in  his  own  hands,  no  necessity  exists 
for  his  holding  it  to  answer  the  attachment,  and  consequently  no 
presumption  arises  that  he  has  not  used  it ;  and  he  will,  there- 
fore, be  charged  with  interest  during  the  pendency  of  the  attach- 
ment.^ 

§  705.  In  pleading  a  pending  attachment  in  abatement,  the 
plea  must  contain  averments  of  all  the  facts  necessary  to  give 
the  court  in  which  the  attachment  is  pending  jurisdiction,  and 
must  show  whether  the  whole  or  what  portion  of  the  debt  has 
been  attached.  A  plea,  therefore,  setting  forth  that  the  defend- 
ant had  been  summoned  as  garnishee,  under  process  issued  on  a 
judgment,  but  not  stating  the  amount  of  the  judgment,  is  bad  on 
general  demurrer.*  In  Ohio  it  was  held,  that  the  previous  gar- 
nishment of  the  defendant,  in  another  State,  and  the  making  of 
an  order  by  the  court  in  the  garnishment  case,  requiring  the  gar- 
nishee to  pay  into  court  the  amount  of  his  indebtedness,  to  satisfy 
the  attaching  creditor,  was  a  good  defence  to  an  action  in  Ohio 
by  the  attachment  defendant  against  the  garnishee  for  the  same 
debt,  though  the  money  had  not' been  paid  into  the  court  having 
cognizance  of  the  garnishment.^  And  where  a  judgment  debtor 
is  charged  as  garnishee,  and  pays  the  debt  under  execution  against 
him  as  such,  and  afterwards  the  judgment  creditor  issues  execu- 
tion against  him,  he  can  apply  to  the  court  out  of  which  this  ex- 
ecution issued  for  an  order  to  enter  satisfaction  of  the  judgment 

1  Fitzgerald  v.  Caldwell,  2  Dallas,  215;  ♦  Crawford  v.  Clute,  7  Alabama,  157; 

Weber  v.  Carter,  1  Pliiladelpliia,  221.  Crawford  v.  Slade,  9  Ibid.  887. 

'^  Updettrati  v.  Spring,  11   Sergeant  &  ^  Baltimore  &  0.  R.  11.  Co.  v.  May,  25 

Rawle,  188.  Ohio  State,  347. 

*  Willing  V.  Consequa,   Peters   C.  C. 
301. 

[615] 


§  706  a     WHERE   ATTACHMENT   IS   A   DEFENCE,    [CHAP.  XXXVIII. 

on  which  it  is  based.     It  is  not  a  case  for  the  interposition  of  a 
court  of  chancery.^ 

§  706.  II.  Where  suit  is  brought  after  Judgment  rendered  against 
the  Garnishee.  When,  by  a  court  having  jurisdiction  of  the  action 
and  of  the  garnishee,  judgment  is  rendered  against  him,  and  he 
lias  satisfied  it  in  due  course  of  law,  such  judgment  is  conclusive, 
against  parties  and  privies,  of  all  matters  of  right  and  title  decid- 
ed by  the  court,  and  coustitutes  a  complete  defence  to  any  sub- 
sequent action  by  the  defendant  against  the  garnishee,  for  the 
amount  which  the  latter  was  compelled  to  pay  ;  ^  and  this  though 
the  court  be  a  foreign  tribunal.^  But,  of  course,  such  a  judg- 
ment cannot  affect  the  rights  of  any  one  not  a  party  or  privy 
to  it.* 

§  706  a.  A  judgment  in  favor  of  the  garnishee  is  equally  con- 
clusive against  the  plaintiff,  though  obtained  by  means  of  fraud, 
and  even  perjury,  committed  by  a  garnishee.  A  case  arose  in 
New  Hampshire,  where,  after  the  garnishee  had  answered  and 
was  discharged,  the  plaintiff  brought  an  action  on  the  case  against 
him  for  obtaining  his  discharge  by  falsehood  and  fraud  in  his  dis- 
closure, averred  in  the  declaration  to  have  been  "  wholly  false, 
fraudulent,  wicked,  wilful,  and  designed  to  defraud  the  plaintiff 
of  his  just  claim  against  his  debtor  ;  by  reason  of  which,  the 
plaintiff  was  defrauded  and  prevented  from  recovering  his  debt 
against  his  debtor,  and  has  wholly  lost  the  same."  There  was  a 
demurrer  to  the  declaration,  which  was  sustained,  on  the  follow- 
ing grounds :  "  What  is  the  foundation  of  the  plaintiff's  claim 

1  Chandler  v.  Faulkner,  5  Alabama,  Fitch,    1    Sandford  Ch'y,   142;  Noble   v. 

567.  .  Thompson  Oil  Co.,  69  Penn.  State,  409; 

-  Post,  §  710  ;  Killsa   v.  Lerniond,  6  Morgan  v.  Neville,  74  Ibid.  52 ;  Baltimore 

Maine,  116  ;   Holmes  v.  Remsen,  4  John-  &  O.  R.   R.  Co.  v.  May,  25  Ohio   State, 

son    Ch'y,  460;    20  Johnson,  229;    Hitt  347;   Wigwall  v.  Union  C.  &  M.  Co.,  37 

V.   Lacy,    3    Alabama,    104 ;    Foster    v.  Iowa,  129. 

Jones,   15  Mass.   185 ;   Mills  v.  Stewart,  *  Wise  v.  Hilton,  4  Maine,  435 ;  Olin 

12  Alabama,  90;    Ross  v.  Pitts,  39  Ibid.  ?;.  Figeroux,  1   McMullan.  203  ;  Miller  v. 

606;    Moore   v.   Spackman,  12  Sergeant  McLain,    10   Yerger,   245;    Lawrence  v. 

&    Rawle,    287;     Coates    v.    Roberts,   4  Lane,  9  Illinois  (4  Oilman),  354;  Cooper 

Rawle,    100  ;     Anderson    v.    Young,    21  v.  McClun,  16  Ibid.  4.35 ;  Gates  v.  Kerby, 

Penn.  State,  443;     Cheairs  v.  Slaten,  3  13  Missouri,  157  ;  Funkhouser  w.  IIow,  24 

Humphreys,  101;  Adams  v.  Filer,  7  Wis-  Ibid.  44;  Dobbins  v.  Hyde,  37  Ibid.  114; 

consin,  306.  Wilson  v.  Murphy,  45  Ibid.  409;  Mankin 

3  Barrow  v.  West,  23  Pick.  270  ;  Tay-  v.     Ciiandler,    2    Brockenbrough,     125  ; 

lor  r.  Phelps,  1  Harris  &  Gill,  492 ;  Gunn  Lyman   v.  Cartwright,  3   E.  D.    Smith, 

V.  Howell,  35  Alabama,  144;  Cochran  v.  117. 
[616] 


CHAP.  XXXVIII.]      AND   THE   MANNER   OF   PLEADING   IT.  §  707 

and  charge  ?  The  substance  of  his  complaint  is,  that  the  defend- 
ant had  in  his  hands  funds  for  which  he  ought  to  have  been 
charged  as  trustee  in  that  suit,  and  that  by  fraudulent  contriv- 
ance with  B.  (the  defendant  in  the  attachment  suit),  and  by- 
falsehood  and  fraud  in  his  disclosure,  he  obtained  an  unjust 
judgment  for  his  discharge.  The  plaintiff,  therefore,  undertakes, 
as  the  foundation  of  his  claim,  to  put  in  issue  the  precise  point 
that  was  adjudged  between  the  same  parties  in  the  former  suit, 
to  wit :  whether  the  defendant  had  in  his  hands  funds  for  which 
he  ought  in  that  process  to  have  been  chai'ged  as  the  trustee 
of  B. 

"  The  same  facts  that  would  be  required  to  maintain  this  dec- 
laration, would  have  been  sufficient  to  charge  the  defendant  as 
trustee  in  the  former  suit.  To  maintain  this  declaration  the 
plaintiff  would  be  obliged  to  show  that,  by  fraudulent  transfers 
and  conveyances,  property  of  B.  came  into  the  possession  of  the 
defendant,  for  which  he  was  chargeable  in  that  suit  as  trustee  ; 
otherwise  he  would  not  show  that  the  defendant's  disclosure  was 
false,  or  that  he  had  suffered  any  damage  by  losing  a  security  for 
the  payment  of  his  debt  against  B. ;  but  if  the  same  facts  had 
appeared  in  that  suit,  of  course  the  trustee  would  have  been 
charged. 

"  It  is  quite  manifest  that  in  this  action  the  plaintiff  seeks  to 
try  again  the  same  question  that  was  tried  and  decided  in  the 
former  suit  between  the  same  parties.  This,  on  well-settled  prin- 
ciples, he  cannot  be  permitted  to  do ;  and  we  are  not  able  to  see 
any  peculiar  hardship  in  the  application  of  so  familiar  a  general 
principle  to  this  case. 

"  This  action  is  of  new  impression.  If  the  experiment  should 
succeed,  in  all  the  numerous  cases  where  plaintiffs  seek  to  charge 
trustees  on  the  ground  of  fraudulent  conveyances  made  to  thera 
by  debtors,  after  a  judgment  discharging  the  trustees,  they  might 
be  sued  again,  as  in  this  case,  and  the  same  question  tried  anew 
in  another  action."  ^ 

§  707.  The  discharge  of  a  garnishee  in  the  attachment  suit  is 
no  bar  to  an  action  by  the  defendant  for  any  cause  of  action  ex- 
isting at  the  time   of  the  discharge.^     Nor  does  a  judgment  in 

1  Lyford  v.  Demerritt,  32  New  Hamp.  234. 

2  Puffer  V.  Graves,  6  Foster,  258. 

[617] 


§  708  "WHERE   ATTACHMENT   IS   A   DEFENCE,    [CHAP.  XXXVIII. 

favor  of  (lie  g^arnisliee  in  one  attachment  suit  preclnde  his  being 
charged  as  garnishee  on  account  of  the  same  debt,  in  another  suit 
in  favor  of  a  different  party. ^  Nor  does  the  judgment  against 
the  garnishee  amount  to  res  adjudicata,  as  between  him  and  the 
defendant,  so  as  to  preclude  the  latter  from  claiming  more  in  his 
action  than  the  garnishee  was  considered,  in  the  attachment  pro- 
ceedings, to  owe.  Were  such  the  case,  it  would  be  in  the  power 
of  a  garnishee,  by  confessing  in  his  answer  a  smaller  indebted- 
ness than  actually  existed,  to  practise  an  irremediable  fraud  upon 
his  creditor.^ 

§  708.  Though  judgment  against  the  garnishee,  and  satisfaction 
thereof,  constitute  a  complete  bar  to  an  action  by  the  attachment 
defendant,  to  the  extent  of  the  amount  so  paid,  is  the  judgment 
alone,  without  satisfaction,  such  a  bar?  On  this  point  the  au- 
thorities do  not  agree.  In  England  it  is  held,  that  attachment 
and  condemnation  of  a  debt  is  a  bar  to  an  action  upon  the  same 
debt.^  In  this  country  the  same  has  been  held  in  Maine,^  Massa- 
chusetts,^ Florida,^  Indiana,"  and  Kentucky.^  The  Circuit  Court 
of  the  United  States  for  the  Third  Circuit  held,  that  a  judgment 
in  attachment,  where  the  attachment  was  laid  on  effects  in  the 
plaintiff's  hands,  might  be  pleaded  in  bar,  by  way  of  offset,  or 
given  in  evidence  on  notice.^     In  Pennsylvania  and  Maryland, 

1  Spruill  V.  Trader,  5  Jones,  39;  was  defaulted,  and  judgment  was  ren- 
Breading  v.  Siegworth,  29  Penn.  State,  dered  against  the  goods,  effects,  and 
396.  credits   of  the   defendant   in   liis  hands ; 

2  Robeson  v.  Carpenter,  7  Martin,  and  afterwards  on  scire/acias,  he  appeared 
N.  8.  30;  Brown  v.  Dudley,  33  New  and  disclosed  to  the  court  that  he  was 
Hamp.  511 ;  Cameron  v.  Stollenwerck,  not  liable  as  garnishee,  and  was  dis- 
6  Alabama,  704 ;  Baxter  v.  Vincent,  6  charged  ;  and  afterwards,  when  sued  by 
Vermont,  614 ;  Barton  v.  Albright,  29  the  defendant,  undertook  to  set  up  the 
Indiana,  489.  See  Tams  v.  Bullitt,  35  judgment  by  default  in  bar  of  the  ac- 
Penn.  State,  308,  where  it  was  held,  that  tion  ;  it  was  held  to  be  no  bar,  although 
a  judgment  against  a  garnishee  is  no  bar  the  judgment  by  default  was  rendered 
to  an  action  by  the  assignees  in  insol-  before,  and  the  discharge  of  the  garnishee 
vency  of  a  defendant,  to  recover  from  ordered  after,  the  commencement  of  the 
him  more  than  he  was  charged  for  as  defendant's  suit  against  him.  Sargeant 
garnishee.  v.  Andrews,  3  Maine,  199. 

^  Savage's  Case,  1  Salkeld,  291;  Mc-  ^  Perkins    v.   Parker,    1    Mass.    117; 

Daniel  v.  Hughes,  3  East,  367;  Turbill's  Hull  v.  Blake,  13  Ibid.  153. 
Case,  1  Saunders,  67,  Note  1.  ^  Sessions  v.  Stevens,  1  Florida,  233. 

<  Matthews   v.    Houghton,  11    Maine,  '  Covert  f.  Nelson,  8  Blackford,  265 ; 

377  ;  Norris  v.   Hall,   18  Ibid.  332  ;    Mc-  King  v.  Vance,  46  Indiana,  246. 
AUister  v.   Brooks,  22  Ibid.  80.     But  it  *  Coburn  v.  Currens,  1  Bush,  242. 

must  be  a  final  judgment,  not  a  judgment  ^  Cheongwo  v.  Jones,  3  Washington 

by   default   merely.      Therefore,    where,  C.  C.  359. 
imder  the  practice  in  Maine,  a  garnishee 

[618] 


CHAP.  XXXVni.]       AND   THE   MANNER   OF   PLEADING   IT.         §  708 


however,  to  entitle  the  garnishee  to  a  plea  in  bar,  it  must  appear 
that  he  has  been  compelled  to  pay  the  debt,  or  that  an  execution 
has  been  levied  on  his  property.^  And  in  Georgia,  in  an  action 
by  an  indorsee  against  the  maker  of  a  promissory  note,  trans- 
ferred to  him  after  the  maker  had  been  summoned  as  garnishee, 
it  was  decided  that  the  recovery  of  judgment  against  the  gar- 
nishee, without  satisfaction,  did  not  constitute  a  defence  to  the 
action  ;  and  that  if,  after  judgment  obtained  against  the  maker 
of  the  note,  he  should  satisfy  the  judgment  rendered  against  him 
as  garnishee,  the  judgment  on  the  note  would  thereby  be  extin- 
guished ;  except,  perhaps,  for  costs.^  And  in  Alabama,  satisfac- 
tion of  the  judgment  against  the  garnishee  is  necessary  to  absolve 
him  from  liability .^     And  so  in  Texas.^ 

The  Supreme  Court  of  Massachusetts,  however,  has  somewhat 
modified  its  first  ruling  on  this  subject,  holding  that  where  it 
does  not  appear  that  execution  has  been  awarded  against  the 
garnishee,  and  that  he  has  been  called  on  or  compelled  to  pay,  it 
is  not  such  a  payment,  merger,  or  discharge  of  the  original  debt 
as  to  be  pleaded  in  bar.^ 


1  Lowry  v.  Lumbermen's  Bank,  2 
"Watts  &  Sergeant,  210  ;  Brown  v.  Somer- 
ville,  8  Maryland,  444. 

2  Brannon  v.  Noble,  8  Georgia,  549. 
»  Cook  V.  Field,  3  Alabama,  53. 

*  Farmer  v.  Simpson,  6  Texas,  303. 

s  Meriam  v.  Rundlett,  13  Pick.  511. 
The  facts  of  the  case  were  thus  stated 
in  the  opinion  of  the  court :  "  This  is 
assumpsit  by  the  indorsees  against  the 
promisors  on  a  promissory  note  given  at 
St.  Louis,  in  tlie  State  of  Missouri.  The 
defendants  plead  in  bar,  that  after  the 
making  of  the  note,  which  was  given  to 
one  Oliver  Hudson,  upon  a  purchase  at 
auction  of  the  goods  of  Hudson,  and  in 
satisfaction  of  a  precedent  debt  to  Hud- 
son, by  Rundlett  (the  defendant  in  the 
action)  and  his  partner  Randolph  jointly, 
they  were  attached  as  the  garnishees  of 
said  Hudson,  and  upon  a  disclosure  of  the 
circumstances  under  which  this  note  was 
given,  they  were  adjudged  liable  as  such 
garnishees,  to  Hill  &  M'Gunnegle,  the 
plaintiffs  in  that  suit.  It  is  not  alleged 
that  they  have  paid  over  any  thing  in 
pursuance  of  the  judgment  in  that  suit, 
nor  is  the  law  of  Missouri  set  out  to  such 
an  extent  as  to  enable  the  court  to  deter- 


mine what  is  the  effect  of  such  a  judg- 
ment in  that  State.  On  oyer  the  judg- 
ment and  proceedings  are  set  out  at 
length  in  the  replication.  The  proceed- 
ings are  detailed  so  far  as  to  show  that 
Rundlett,  for  the  firm  of  Rundlett  & 
Randolph,  garnishees  in  the  case,  having 
in  his  answer  admitted  that  they  were 
indebted  to  said  Oliver  Hudson  in  the 
sum  of  $379.74,  it  was  considered  that 
the  plaintiffs  recover  against  said  Rund- 
lett &  Randolph,  garnishees  as  aforesaid, 
the  said  sum,  &c."  To  this  plea  there 
was  a  demurrer,  assigning  the  following 
causes  :  1.  That  it  does  not  appear  from 
the  plea,  that  Rundlett  &  Randolph  have 
ever  paid  any  thing  on  account  of  the 
judgment  recovered  against  them  as  gar- 
nishees, nor  that  they  were  liable  to  pay 
the  same  when  the  plea  was  pleaded. 
2.  That  the  facts  set  forth  in  the  plea  are 
only  a  ground  for  a  continuance,  and  not 
for  a  plea  in  bar,  until  Rundlett  &  Ran- 
dolph have  paid  the  money  on  the  judg- 
ment against  them  as  garnishees.  3.  That 
it  appears  from  the  record  that  Hill  & 
M'Gunnegle  recovered  judgment  against 
Hudson  for  $1,007.79,  and  against  four 
other  persons,  as  garnishees,  divers  sums, 
[619] 


§  709  WHERE   ATTACHMENT    IS    A   DEFENCE,    [CHAP.  XXXVIII. 


§  709.  A  case  came  before  Story,  J.,  on  the  circuit,  in  which 
the  effect  to  be  given  to  a  judgment  against  a  garnishee  was  con- 
sidered, where  it  appeared  that  the  phiintiff  in  the  attachment 
had,  by  his  neglect  to  comply  with  the  local  laws,  put  his  judg- 
ment in  a  state  of  suspension,  so  that  execution  could  not  issue 
upon  it,  and  it  could  not  be  revived  by  a  scire  facias.  The  court 
held,  that  the  lien  of  the  judgment  against  the  garnishee  was  lost 


making  together  $1, 724. 06;  and  the  plea 
does  not  show  wliether  those  other  gar- 
nishees, or  eitlier  of  tliem,  have  or  have 
not  paid  any  part  of  the  judgments  re- 
covered against  them  as  garnishees. 

Shaw,  C.  J.,  delivered  the  opinion 
of  the  court.  "  It  has  heen  very  well 
settled  in  this  Commonwealth,  that  a 
judgment  against  a  garnishee  in  another 
State,  where  the  court  has  jurisdiction 
of  the  person  and  of  the  subject-matter, 
will  protect  one  here,  who  has  been 
obliged  to  pay,  or  is  compellable  to  pay, 
in  pursuance  of  such  judgment,  although 
it  be  a  debt  due  on  a  promissory  note  or 
other  negotiable  security,  although  no 
such  judgment  would  have  been  rendered 
against  a  garnisliee  or  trustee  under  our 
laws,  and  although  such  law  appears  to 
us  a  little  unreasonable. 

"  He  who  pays  under  the  judgment 
of  a  tribunal  having  legal  jurisdiction  to 
decide,  and  adequate  power  over  the 
person  or  property  to  compel  obedience 
to  its  decisions,  has  an  indisputable 
claim  to  protection.  But  upon  general 
principles,  one  who  has  not  yet  been 
compelled  to  pay,  and  who  may  never  be 
obliged  to  pay  to  another,  who  has  at- 
tached the  debt  in  his  hands,  although 
he  may  have  good  right  to  insist  that 
proceedings  ought  not  to  be  commenced 
or  prosecuted  against  him,  whilst  his 
hands  are  tied,  and  he  is  legally  prohib- 
ited from  paying  his  debt,  and  so  may 
have  good  ground  for  an  abatement  or 
stay  of  proceedings,  seems  in  no  condi- 
tion to  deny  the  plaintiff's  right  to  recover 
his  debt,  absolutely  and  for  ever. 

"  In  examining  the  record  of  the  judg- 
ment, as  set  out  in  the  replication,  it  does 
not  appear  that  any  execution  has  ever 
been  awarded.  But  it  does  appear  that 
the  whole  debt  due  to  the  plaintiffs  in 
that  suit,  as  settled  by  the  judgment, 
was  -^l.OOT.TQ  with  costs  ;  and  that  other 
[620] 


garnishees  were  charged,  in  precisely  the 
same  terms  with  the  defendants,  in  sev- 
eral sums,  which,  together  with  the  judg- 
ment against  the  defendants,  made  up- 
wards of  §2,100,  that  is,  more  than  double 
the  amount.  It  is  impossible,  therefore, 
to  consider,  that  these  debts  became 
absolutely  transferred  and  made  debts 
due  from  the  garnishees  to  the  attaching 
creditor ;  the  more  rational  inference, 
therefore,  would  be,  that  by  the  law  of 
that  State  such  judgment  is  deemed  to 
operate  as  a  sequestration,  as  a  lien,  mak- 
ing these  sums  chargeable  and  liable  in 
the  hands  of  the  garnishees  to  the  amount 
of  the  attaching  creditor's  debt,  and  no 
further.  If  this  is  not  a  just  inference, 
if  the  effect  of  this  adjudication  was  abso- 
lutely to  transfer  the  debt,  to  extinguish 
tlie  relation  of  debtor  and  creditor  be- 
tween the  garnishee  and  the  original 
proprietor  and  present  indorser  of  the 
note,  the  law  of  Missouri,  giving  it  that 
extraordinary  effect,  should  have  been 
set  out;  but  as  it  is  not  done,  the  plea  in 
bar  cannot  be  supported." 

The  court  then  enter  upon  an  exam- 
ination of  the  attachment  law  of  Mis- 
souri, and  find  there  a  sufficient  ground 
for  affirming  the  position  previously  an- 
nounced, "that  the  judgment  against  the 
garnishees  amounts  to  nothing  more  than 
a  lim  on  the  fund  in  their  hands,  and 
even  that  is  a  provisional  one,  to  take 
eflfect  only  in  case  that  other  funds  which 
are  first  chargeable  shall  prove  insuffi- 
cient. The  court  are,  therefore,  of  opin- 
ion that,  notwithstanding  the  judgment, 
until  an  execution  has  been  awarded, 
and  the  garnishee  has  been  called  on  or 
compelled  to  pay,  it  is  not  sucli  a  pay- 
ment, merger,  or  discharge  of  the  origi- 
nal debt  as  to  be  pleaded  in  bar,  and 
therefore  that  the  plea  in  this  case, 
not  stating  either  payment  or  execution 
awarded,  is  bad." 


CHAP.  XXXVIII.]      AND   THE   MANNER   OF   PLEADING   IT.  §  711 

by  the  laches  of  the  plaintiff,  and  that  the  judgment  was  no  de- 
fence against  an  action  for  the  debt.^ 

§  710.  There  can  be  no  doubt  that,  as  a  general  rule,  where  a 
part  or  the  whole  of  the  debt  of  the  garnishee  to  the  defendant 
has  been  paid  under  the  judgment  against  him,  such  pajanent  is 
as  effectual  a  bar,  either  pro  tanto  or  complete,  to  a  subsequent 
action  by  the  defendant  upon  that  debt,  as  if  the  payment  had 
been  made  to  the  defendant  himself.^  And  where,  in  an  action 
against  the  garnishee,  by  his  creditor,  the  attachment  defendant, 
the  agreed  statement  of  facts  submitted  to  the  court  was  silent 
as  to  whether  the  amount  of  the  judgment  against  the  garnishee 
was  equal  to  his  debt  to  the  defendant,  it  was  presumed  to  have 
been  so.^  And  a  payment  of  a  debt  by  one  of  several  joint  debt- 
ors under  garnishment,  is  a  good  defence  for  all  against  a  suit  by 
the  defendant.* 

§  710  a.  Wherever  such  a  payment  would  avail  the  garnishee, 
it  will  equally  avail  one  collaterally  and  contingently  so  bound 
as  to  become  liable  to  pay  the  debt  in  respect  of  which  the  gar- 
nishee was  charged.  Thus,  where  A.,  a  defendant  in  a  judg- 
ment, removed  the  judgment  to  the  appellate  court,  and  in  order 
thereto  gave  a  bail  bond  with  B.  as  surety ;  and  afterwards  A. 
was  compelled  by  an  attachment  proceeding  in  another  State  to 
pay  the  amount  of  the  judgment ;  and  after  such  payment  the 
judgment  was  affirmed  by  the  appellate  court ;  and  B.  was  sued 
on  the  bail  bond ;  it  was  held,  that  A.'s  payment  under  the  at- 
tachment was  a  valid  defence  in  favor  of  B.^ 

§  711.  Where  a  payment  under  a  judgment  against  a  garnishee 
is  relied  on  as  a  defence  to  a  suit  by  the  attachment  defendant, 
it  is  important  to  observe  the  rules  upon  which  it  will  be  sus- 
tained.    They  may  be  compendiouslj^  stated  as  follows : 

1.  The  judgment  against  the  garnishee,  under  which  he  al- 
leges he  made  the  payment,  must  be  proved.^     Of  course,  the 


1  Flower  v.  Parker,  3  Mason,  247.  ^  McAllister  v.  Brooks,  22  Maine,  80. 

'^  Ante,  §  706 ;  Brown  v.  Dudley,  33  *  Cook  v.  Field,  3  Alabama,  68. 

New   Hatnp.    511;    Gunn    i\    Howell,    35  ^  Noble    v.    Thompson    Oil    Co.,    69 

Alabama,  144;  Dole  v.  Boutwell,  1  Allen,  Penn.  State,  409. 

286  ;    Ladd   v.   Jacobs,    64   Maine,   347  ;  <>  Barton  v.  Smith,  7  Iowa,  85. 
Allen  V.  Watt,  79  Illinois,  284. 

[621] 


§  711         WHERE  ATTACHMENT   IS   A   DEFENCE,     [CHAP.  XXXVIIT. 

proper  evidence  of  the  judgment  is  a  duly  certified  exemplifi- 
cation of  the  record ;  but  in  Massachusetts  it  was  held,  that  a 
recital  of  the  judgment  in  the  execution  against  a  garnishee  jus- 
tified him  in  paying  the  amount  thereof,  and  that  the  payment  so 
made  was  a  good  defence  by  him  in  an  action  against  him  by  the 
attachment  defendant.^ 

2.  It  must  have  been  a  valid  judgment.  No  payment  made 
under  a  void  judgment,  however  apparently  regular  the  proceed- 
ings may  have  been,  can  protect  the  garnishee  against  a  subse- 
quent payment  to  the  defendant  or  his  representatives.  Thus, 
where  an  attachment  was  obtained  against  one  supposed  to  be 
living  in  a  foreign  country,  but  who  was  dead  when  the  suit  was 
commenced,  it  was  held,  that  a  payment  made  by  a  garnishee, 
under  execution,  was  no  defence  against  an  action  by  the  defend- 
ant's administrator ;  the  whole  proceedings  in  the  suit  being  a 
mere  nullity .^ 

3.  The  payment  must  not  have  been  voluntary.  Any  payment 
not  made  under  execution  will  be  regarded  as  voluntary,  and, 
therefore,  no  protection  to  the  garnishee;^  unless  the  law  au- 
thorized the  court  to  require  the  garnishee  to  pay  the  money  into 
court ;  when  such  a  payment  will  be  regarded  as,  in  legal  effect, 
the  same  as  a  payment  under  execution."* 

4.  The  payment  must  be  actual,  and  not  simulated  or  contrived. 
Thus,  where  certain  persons  were  charged  as  garnishees,  and 
credited  the  plaintiff  on  their  books  with  the  amount  of  the  judg- 
ment, and  debited  the  defendant  with  the  same  amount,  but  did 
not  in  fact  pay  the  money,  it  was  held  to  be  no  payment.^ 

1  Leonard   v.   New   Bedford    Savings  ^  Wetter    v.   Rucker,    1    Broderip    & 

Bank,  11(5  Mass.  210.  Bingham,   491.     The   following   case    is 

^  Loring  v.  Folger,  7  Gray,  505.  reported   in   Maryland  :  A.   executed  to 

3  Wetter   v.    Rucker,    1    Broderip    &  B.  several   notes,  for  different  amounts, 

Bingham,   iyi.     In    Missouri,    where    a  and  payable  at  difierent  times;  and  was 

judgment    debtor    was    garnished,   who  afterwards  garnished,  in  a  suit  against  B., 

jjaid   the  judgment  under  an  execution  and   charged   in   respect   of    all   of    the 

afterwards  issued,  but  which  was  irreg-  notes.    After  being  so  charged,  A.  bought 

ular  and  might  have  been  set   aside  on  the  judgment  which  had  been  rendered 

his   application,  the   payment   was   held  against  liim  as  garnishee,  for  about  one- 

to  be  no  protection  against  the  garnish-  third  of  its  amount.     Alter  this,  A.  was 

ment.    Home  Mutual  Ins.  Co.  v.  Gamble,  sued  by  an  indorsee  for  value  of  one  of 

14  Missouri,  407.     See  Burnap  v.  Camp-  tlie  notes,  in  respect  of  which  tiie  judg- 

bell,  6  Gray,  241.  ment  against  him  as  garnisliee  had  been 

•*  Ohio  &  M.   R.  W.  Co.  v.  Alvey,  43  rendered  ;  and  set  up  that  judgment  and 

Indiana,    180;  Rochereau  v.  Guidry,   24  the  transfer  of  it  to  him,  as  a  defence, 

Louisiana  Annual,  2y4.  by  way  of  a  payment  under  garnisliment. 
[622] 


CHAP.  XXXVni.]      AND    THE   MANNER   OF  PLEADING   IT.        §  711 

5.  The  judgment  under  which  the  payment  was  made  must 
have  been  rendered  by  a  court  having  jurisdiction  of  the  subject- 
matter  and  the  parties.  If  there  be  a  defect  in  this  respect,  the 
payment  will  be  regarded  as  voluntary,  and  therefore  unavail- 
ing.^ If,  however,  the  court  have  jurisdiction  of  the  subject- 
matter  and  the  parties,  it  will  be  presumed,  when  a  payment  under 
the  judgment  is  pleaded  by  the  garnishee,  that  all  the  proper 
steps  were  taken  to  charge  him  ;^  and  a  payment  on  execution 
under  its  judgment  will  protect  the  garnishee,  though  the  judg- 
ment may  have  been  irregular,  and  reversible  on  error ;  ^  and  a 
reversal  of  it  by  the  defendant  for  irregularity,  after  payment  by 
the  garnishee,  will  not  invalidate  the  payment.*  But  if  the  gar- 
nishee contest  the  jurisdiction  of  the  court,  and  his  objection  is 


It  was  held,  however,  that  for  the  pur- 
poses of  that  case  the  holder  of  the  note 
was  to  be  regarded  as  occupying  the 
situation  of  the  attachment  defendant, 
from  whom  he  acquired  the  note;  that 
the  defendant  would  have  been  interested, 
and  tlie  holder  of  the  note  was  interested 
in  the  payment  of  the  whole  amount  of 
the  judgment  against  A. ;  and  A.,  by  the 
purcliase  of  the  judgment,  occupied  no 
better  position  than  any  other  purchaser 
of  it  would  occupy  ;  and  that  such  pur- 
chase was  no  defence  against  the  note, 
though  as  betweeeu  A.  and  the  attach- 
ment plaintiff  tlie  judgment  was  satisfied 
and  closed.  Brown  v.  Sonierville,  8 
Maryland,  444.  In  Connecticut,  in  Cutler 
V.  Baker,  2  Day,  498,  the  following  case 
was  presented.  A.  sued  out  an  attach- 
ment against  B.,  and  summoned  C.  as 
garnishee.  A.  having  obtained  judgment 
and  execution  against  B.,  caused  demand 
to  be  made  upon  C.  for  the  goods  and 
effects  of  B.,  toward  satisfying  the  exe- 
cution, but  none  were  exposed.  B.  tlien 
sued  C,  who  was  still  liable  to  A.  as  gar- 
nishee. C.  being  threatened  by  A.  with 
a  scire  facias  against  him  as  garnishee,  to 
avoid  cost,  gave  a  note  in  satisfaction  of 
BO  much  as  he  owed  B.,  wliicli  note  was 
in  the  following  form  :  "  Value  received 
1  promise  to  pay  A.,  $o44,52,  with  inter- 
est, whenever  a  certain  suit  in  favor  of 
B.,  now  pending  against  me,  shall  be 
determined  —  provided  said  suit  shall  be 
determined  in  my  favor  —  otherwise  this 
note  is   to  be  given  up  to  me."     It  was 


held  that  this  was  a  sufficient  payment 
to  protect  C.  against  a  judgment  in  favor 
of  B.  It  is  very  difficult  to  understand 
the  ground  for  such  a  decision.  The  court 
gave  no  opinion.  It  is  not  easy  to  dis- 
cover how  the  note  could  be  considered 
as  a  payment  at  all,  or  any  thing  more 
than  an  agreement  to  pay  on  a  certain 
contingency ;  much  less  a  payment  in 
obedience  to  a  legal  proceeding.  In 
Troyer  v.  Schweiser,  15  Minnesota,  241, 
it  was  held,  that  a  payment  by  the  gar- 
nishee under  a  judgment  upon  which  no 
execution  had  been  issued,  was  sufficient 
to  protect  the  attachment  plaintiff  against 
an  action  by  the  defendant,  after  that 
judgment  had  been  set  aside,  to  recover 
back  the  amount  paid  by  the  garnishee. 

'  Harmon  v.  Birchard,  8  Blackford, 
418  ;  Ford  v.  Hurd,  4  Smedes  &  Marshall, 
683 ;  Robertson  v.  Roberts,  1  A.  K.  Mar- 
shall, 247 ;  Richardson  v.  Hickman,  22 
Indiana,  244 ;  Stimpson  v.  Maiden,  109 
Massachusetts,  313. 

•i  Morgan  v.  Neville,  74  Penn.  State, 
52. 

3  Atcheson  v.  Smith,  3  B.  Monroe, 
502 ;  Lomerson  v.  Hoffman,  4  Zabriskie, 
674  ;  Pierce  v.  Carleton,  12  Illinois,  358 ; 
Houston  V.  Walcott,  1  Iowa,  86;  Steb- 
bins  V.  Fitch,  1  Stewart,  180  ;  Thompson 
V.  Allen,  4  Stewart  &  Porter,  184 ;  Gunn 
V.  Howell,  35  Alabama,  144 ;  Webster  v. 
Lowell,  2  Allen,  123. 

*  Duncan  v.  Ware,  5  Stewart  &  Porter, 
119. 

[623] 


§  712         "WHERE   ATTACHMENT   IS    A    DEFENCE,     [CHAP.  XXXVIII. 

overruled,  and  judgment  rendered  against  him,  a  payment  made 
by  him  under  that  judgment  cannot  be  collaterally  impeached 
elsewhere,  on  the  ground  that  the  court  had  no  jurisdiction.  Its 
decision  on  that  point  is  conclusive  in  favor  of  the  garnishee. ^ 

6.  Tliough  the  court  have  jurisdiction  of  the  parties,  and  its 
judgment  be  valid  as  against  the  garnishee,  yet  if  the  law  require 
the  plaintiff,  as  a  condition  precedent  to  obtaining  execution,  to 
do  a  particular  act,  and  without  performing  the  condition  he  ob- 
tain execution,  and  the  garnishee  make  payment  under  it,  the 
payment  will  be  no  protection  ;  for  it  is  in  the  garnishee's  power 
to  resist  the  payment  until  the  condition  be  fulfilled  ;  failing  in 
which,  his  payment  is  regarded  as  voluntary.  Thus,  in  Pennsyl- 
vania, where  a  statute  required  that  before  payment  could  be 
exacted  from  a  garnishee,  the  plaintiff  should  give  a  bond  to 
answer  to  the  defendant,  if  he  should,  within  a  year  and  a  day, 
disprove  or  avoid  the  debt ;  and  a  garnishee  paid  the  amount  of 
the  judgment  to  the  attachment  plaintiff,  without  execution,  and 
without  such  bond  being  given ;  it  was  held,  that,  as  his  defence 
to  an  action  on  the  debt  rested  on  his  having  been  compelled  by 
due  course  of  law  to  pay  it  as  garnishee,  and  he  in  fact  had  not 
and  could  not  have  been  compelled  so  to  pay  it,  the  payment  he 
had  made  was  no  defence  to  the  action.^  The  same  view  was 
entertained  in  Mississippi,^  and  in  lowa.^  In  the  last-named 
State  the  law  provides  that  a  garnishee  shall  not  be  made  liable 
on  a  debt  due  by  negotiable  or  assignable  paper,  unless  such  paper 
is  delivered,  or  the  garnishee  completely  exonerated  or  indemni- 
fied from  all  liability  thereon,  after  he  may  have  satisfied  the 
judgment ;  and  it  was  there  held,  that  if  such  a  garnishee  suffer 
judgment  to  go  against  him,  in  an  action  against  the  payee  of  the 
paper,  without  requiring  such  exoneration  or  indemnification,  he 
cannot  set  up  a  payment  made  by  him  under  the  judgment  as  a 
defence  to  an  action  by  an  assignee  of  the  paper,  who  acquired 
title  to  it  before  the  garnishment.^ 

§  712.  To  entitle  a  garnishee  to  the  protection  of  a  judgment 
against  him  as  such,  all  the  facts  required  by  statute  to  enable 

1  Wyatt's  Adm'r  v.  Rambo,  29  Ala-  (Mi.),  43;  Grissom  v.  Reynolds,  Ibid, 
bama,  510;  Gunn  v.  Howell,  35  Ibid.  144.  670. 

2  Myers  v.  Urich,  1   Binney,  25.     See  *  McPhail  v.  Hyatt,  29  Iowa,  137. 
Moyer  v.  Lobengeir,  4  Watts,  390.  5  Yocum  v.  White,  36  Iowa,  288. 

^  Oldiiam    V.    Ledbetter,    1    Howard 
[624] 


CHAP.  XXXVIII.]    AND   THE   MANNER   OF   PLEADING   IT.  §  715 

the  attachment  plaintiff  to  hold  the  debt  due  by  the  garnishee, 
must  appear  in  the  record  of  the  attachment  suit ;  and  if  it  ap- 
pear that  the  attachment  was  not  legally  served  on  the  garnishee, 
so  as  to  reach  the  debt  in  his  hands,  his  answering  as  garnishee, 
and  the  subsequent  judgment  against  him,  will  not  avail  him.^ 

§  713.  The  question  here  occurs,  Is  the  garnishee  to  be  held 
responsible  for  the  regularity  of  the  proceedings  in  the  suit  in 
which  he  is  garnished  ?  We  have  seen  that  he  is  not  allowed  to 
take  advantage  of  irregularities  or  errors  in  those  proceedings, 
in  order  to  avoid  or  reverse  a  judgment  against  him.^  Manifestly, 
then,  there  can  be  not  the  least  obligation  on  him  to  watch  their 
regularity,  nor  can  he  in  any  way  be  held  responsible  for  it.^ 

§  714.  In  order  to  entitle  one  to  plead  an  attachment  as  a  con- 
clusive defence,  there  should  be  no  neglect,  collusion,  or  misrep- 
resentation on  his  part,  in  the  progress  of  the  attachment  suit. 
For  if  his  conduct  be  deceptive,  and  his  statements  untrue,  and 
especially  if  this  be  so  in  collusion  with  the  attachment  plaintiff, 
the  judgment  will  not  be  conclusive  against  his  creditor.* 

In  Delaware,  a  case  arose  where  the  judgment  against  the  gar- 
nishee, which  he  set  up  as  a  defence,  was  not  rendered  upon  a 
verdict,  but  upon  a  reference  entered  into  between  the  garnishee 
and  the  attaching  plaintiff ;  and  it  was  sought  to  deprive  him  of 
the  protection  of  his  payment  under  that  judgment,  because  it 
w^as  the  result  of  a  reference  ;  but  the  court  held  it  to  be  as  bind- 
ing on  him  as  a  verdict,  and,  in  the  absence  of  fraud  or  collusion, 
equally  a  protection  to  him.^ 

§  715.  The  importance  of  great  care  in  the  framing  of  a  gar- 
nishee's answer  is  strikingly  enforced,  in  connection  with  the 
subsequent  use  of  the  judgment  against  him  as  garnishee,  as  a 
defence  to  an  action  upon  the  debt  in  respect  of  which  the  judg- 
ment was  rendered.  For  he  cannot  avail  himself  of  such  judg- 
ment, or  of  a  payment  under  it,  as  a  defence,  unless  it  appear 

1  Desha  v.  Baker,  3  Arkansas,  509.  Gray,  2G7 ;  Wheeler  v.  Aldrich,  13  Ibid. 
See  ante,  §  451  b.  51 ;    Burton    v.    District    Township,    11 

2  Ante,  §  697.  Iowa,  166. 

3  Parmer  ;;.  Ballard,  3  Stewart,  326 ;  *  Coates   v.  Roberts,   4  Rawle,   100 ; 
Tubb  V.  Madding,   Minor,    129  ;  Gilder-  Seward  v.  Hefiin,  20  Vermont,  144. 
sleeve    v.   Caraway,    19   Alaliama,   246  ;  ^  gtille  v.  Layton,  2  Harrington,  149. 
Morrison  v.  New   Bedford  Institution,  7 

40  [625] 


§  71G  WHERE  ATTACHMENT  IS  A  DEFENCE,       [CHAP.  XXXVIII. 

that  the  money  paid  was  on  account  of  the  same  debt  for  which 
he  is  sued.^  And  as  the  record  of  the  recovery,  including  the 
answer  of  the  garnishee,  must  be  given  in  evidence  in  the  action 
by  the  creditor  against  him  who  was  garnishee,  the  hitter  shouhl 
not  fail  to  describe  particularly  in  his  answer  the  debt  in  respect 
of  which  he  is  garnished,  and  to  state  every  fact  within  his 
knowledge  having  any  bearing  upon  his  liability ;  so  that,  after- 
wards, the  record  in  the  attachment  suit  shall  exhibit  all  that  is 
necessary  to  a  successful  defence  against  an  action  for  the  same 
debt.  Thus,  A.  answered  as  garnishee,  that  he  was  indebted  to 
the  defendant,  as  executor  of  B.,  in  a  certain  sum,  but  did  not 
state  the  nature  of  the  debt.  Afterwards,  on  being  sued  by  an 
assignee  of  a  note  given  by  his  testator  to  the  defendant,  he 
pleaded  the  judgment  which  had  been  rendered  against  him  as 
garnishee,  and  payment  thereof,  in  bar;  but  the  plea  was  held 
bad,  on  demurrer,  because  it  did  not  aver  that  the  debt  in  respect 
of  which  he  was  garnished  was  the  same  as  that  sued  upon.^  A. 
and  B.  were  joint  makers  of  a  note  to  C.  A.  was  summoned  as 
garnishee  of  C,  and  did  not  answer,  but  suffered  judgment  by 
default  to  be  given  against  him,  and  paid  the  judgment.  After- 
wards A.  and  B,  were  sued  on  the  note  by  C,  and  set  up  the 
payment  of  the  judgment  as  a  payment  pro  tanto  ;  but  it  was 
held  insufficient,  because  in  itself  affording  no  evidence  that  A. 
was  charged  as  garnishee  on  account  of  the  note.^ 

§  716.  Where  the  answer  of  the  garnishee  is  the  basis  of  the 
judgment  against  him,  and  the  matter  constituting  the  garnishee's 
liability  is  therein  set  forth,  the  record  will  sufficiently  establish 
his  defence,  when  sued  by  the  attachment  defendant ;  but  where 
there  was  judgment  by  default  against  the  garnishee,  for  want  of 
answer,  he  must  either  be  deprived  of  his  defence,  because  the 
record  does  not  show  for  what  liability  he  was  charged,  or  be 
permitted  to  show  that  fact  by  parol  proof.  As  it  is  an  invari- 
able rule  that  the  garnishee  shall  not  be  required  to  pay  his  debt 
twice,  there  can  be  no  doubt  that  he  may  by  parol  proof  identify 
the  debt  for  which  he  was  charged  with  that  on  which  he  is 
sued  ;  and  it  was  so  held  in  Alabama.* 

1  Cornwell  v.  Hungate,  1  Indiana,  418.  See  Humphrey  v.  Barns,  Croke, 
156;    Sangster    i;.   Buit,    17    Ibid.    854 ;     Eliz.  091. 

iJirlam  v.  Wenger,  14  Missouri,  548.  ^  Hutchinson  v.  Eddy,  29  Maine,  91. 

2  Harmon   v.   Birchard,  8   Blackford,     See  Dirlam  i,-.  Wenger,  14  Missouri,  548. 


[626] 


*  Cook  V.  Field,  3  Alabama,  53. 


CHAP.  XXXVIII.]    AND   THE   MANNER   OF   PLEADING   IT.  §  717 

§  717.  Usually,  as  between  the  garnishee  and  the  defendant  in 
the  attachment,  difficulty  may  not  arise  from  insufficiency  in  the 
garnishee's  answer  ;  but  as  between  the  garnishee  and  an  assignee 
of  the  debt,  cases  are  likely  to  occur,  in  which  the  garnishee 
may,  for  want  of  fulness  and  explicitness  in  his  answer,  be  com- 
pelled to  pay  his  debt  a  second  time.  If  at  any  time  prior  to 
judgment  against  a  garnishee,  he  become  aware  of  an  assignment 
of  his  debt,  made  before  the  garnishment,  it  is  his  duty  to  bring 
that  fact  to  the  attention  of  the  court,  in  order  that,  if  practi- 
cable, the  assignee  may  be  cited  to  substantiate  his  claim,  or 
that  the  court  may  withhold  judgment.  If  the  garnishee,  know- 
ing the  existence  of  such  an  assignment,  make  no  mention  of  it 
in  his  answer,  the  judgment  against  him  will  be  no  protection  to 
him  against  an  action  by  the  assignee.^ 

In  Alabama,  the  statutory  practice  is,  where  a  garnishee  fails 
to  answer,  to  render  judgment  nisi  against  him  for  the  full  amount 
of  the  plaintiff 's  demand  ;  upon  which  judgment  a  scire  facias 
issues  against  the  garnishee,  returnable  to  the  next  term  of  the 
court,  to  show  cause  why  final  judgment  should  not  be  entered 
against  him  ;  and  upon  such  scire  facias  being  duly  executed  and 
returned,  if  the  garnishee  fail  to  appear,  and  discover  on  oath, 
the  court  confirms  the  judgment,  and  awards  execution  for  the 
plaintiff's  whole  judgment  and  costs.  In  a  case  under  this  prac- 
tice, the  garnishee,  without  waiting  for  the  scire  facias  to  issue, 
paid  the  plaintiff  the  amount  of  the  judgment  7iisi,  and  upon 
being  afterwards  sued  by  the  indorsee  of  a  promissory  note  he 
had  given  to  the  attachment  defendant,  pleaded  that  paj^nent  in 
bar.  It  appeared  that  the  writ  in  the  action  on  the  note  was 
served  on  the  maker  of  the  note  prior  to  the  time  Avhen  he  would 


^  Prescott  V.   Hull,  17  Johnson,  284;  say,  if  a  trustee  make  a  full  and  fair  dis- 

Colvin  u.  Rich,  3  Porter,  175;  Lanikin  v.  closure  of  all  tiie  facts  within  his  knowl- 

Phillips,   y   Ibid.   ycS;    Foster   v.    White,  edge,  and  use  all  reasonable  exertions  to 

Ibid.   221 ;  Johns   v.   Field,   5   Alabama,  preserve  the  rights  of  an  absent  assignee, 

484;    Crayton   v.   Clark,    11    Ibid.    787;  that  a  judgment  against  him  shall  not  be 

8moot  V.  Eslava,  23  Ibid.  659  ;  Stockton  a  protection  to  him  against  such  assignee. 

V,  Hall,  Hardin,  IGU ;  Milliken  u.  Loring,  Bat  if  the  trustee  make  but  a  partial  disdo- 

37    Maine,    408;  Bunker   v.    Gilmore,  40  sure,  so  that  tlie  court  hace  not  op/iortuniti/ to 

Ibid.  88  ;  Casey  v.  Davis,  100  Mass.  124  ;  judje  of  the  real  merits  of  the  case,  and  there 

Greentree  v.  liosenstock,  34  New    York  be  any  indications  of  collusion   bvtween   him 

Superior    Ct.    505;   01   New    York,    583;  and  the   creditor,  the  judi/ment  should  fur- 

Dawson    v.   Jones,    2    Houston,  412.     In  nish    him    no    protection     whatever."      See 

Seward     v.    Hellin,    20    Vermont,    144,  Marsh  v.  Davis,  24  Vermont,  303. 
Hall,  J.,  said  :  "  I  am  not  prepared  to 

[6271 


§  718  ■WHERE  ATTACHMENT  IS  A  DEFENCE,       [CHAP.  XXXVHI. 

have  been  required  by  the  scire  facias — if  one  had  been  issued 
—  to  appear  and  answer  ;  but  no  scire  facias  was  issued.  The 
court  held,  that  the  suit  on  the  note,  in  favor  of  the  indorsee,  was 
a  notice  to  the  maker  that  his  note  had  been  transferred  ;  and 
that  fact  having  been  brought  to  his  knowledge  before  he  could 
have  answered  under  the  scire  facias,  and  before  any  final  judg- 
ment could  have  been  rendered  against  him,  it  was  his  duty  to 
have  answered,  and  made  known  that  he  had  received  notice  of 
the  transfer  of  the  note ;  and  not  having  done  so,  he  could  not 
avail  himself  of  his  payment  under  the  judgment  nisi,  as  a  bar  to 
the  action  on  the  note.^  A  similar  doctrine  was  announced  in 
Indiana.2 

In  Mississippi,  the  courts  have  gone  very  far  in  requiring  gar- 
nishees to  sustain  the  rights  of  assignees.  It  was  there  held,  that 
the  garnishee,  even  after  execution  issued  against  him,  upon 
learning  that  the  debt  attached  in  his  hands  had  been  assigned 
previous  to  the  garnishment,  is  bound  to  protect  himself  against 
the  execution  by  a  bill  of  interpleader ;  and  that  if  he  fail  to  do 
so,  and  satisfy  the  judgment,  it  Avill  be  in  his  own  wrong,  and 
constitute  no  valid  defence  to  the  claim  of  the  assignee.^  But 
afterwards,  when  one  against  whom  judgment  had  been  rendered 
as  garnishee,  and  also  as  defendant  in  a  suit  by  the  assignee  of 
the  debt,  filed  a  bill  of  interpleader  against  both  the  plaintiffs, 
the  same  court  held,  that  it  would  not  lie,  and  left  the  party  to  pay  his 
debt  twice. ^ 

§  718.  It  is  the  dut}^,  not  less  than  the  interest,  of  an  assignee 
of  a  chose  in  action,  to  put  it  in  the  power  of  the  maker  to  disclose 
its  assignment,  in  any  answer  he  may  have  to  give  as  garnishee 
of  the  assignor,  by  notifying  him,  and  exhibiting  to  him  the  evi- 
dence thereof,  that  he  may  be  able  to  state  the  whole  matter  to 
the  court.  It  is  not  to  be  considered  that,  in  all  cases,  a  failure 
•on  the  part  of  the  assignee  to  exhibit  to  the  maker  such  evidence 
will  defeat  or  seriously  prejudice  his  claim  ;  but  in  any  system  of 
practice  where  the  garnishee's  liability  turns  altogether  on  the 
terms  of  his  answer,  and  where  the  effect  given  to  a  statement 

1  Johns  V.  Field,  5  Alabama,  484.  See  ^  Oldham  v.  Ledbetter,  1  Howard 
Colvin  V.  Rich,  3  Porter,  175;  Foster  v.     (Mi.),  43. 

White,  9  Ibid.  221 ;  Kimbrough  v.  Davis,  *  Yarborough  v.  Thompson,  3  Smedes 

34  Alabama,  583.  &  Marshall,  291. 

2  Smith  V.  Blatchford,  2  Indiana,  184. 

[628] 


CHAP.  XXXVIII.]    AND   THE   MANNER   OF   PLEADING  IT.  §  719 

by  him  of  an  assignment  of  the  chose  in  action,  in  respect  of  which 
it  is  souglit  to  charge  him,  depends,  as  in  Massachusetts,  upon  the 
evidence  which  the  answer  affords  of  the  existence  and  les:al 
efficacy  of  such  assignment,  it  is  indispensable  that  the  assignee 
should  produce  to  the  garnishee  such  evidence  of  his  title  as  will 
justify  the  garnishee  in  setting  out  the  assignment  as  an  existing 
fact,  and  as  will  support  the  assignment  against  the  attaching 
creditor.^  Therefore,  where  A.  gave  an  unnegotiable  note  to 
B.,  and  was  afterwards  summoned  as  garnishee  of  B.  ;  and  in  his 
answer  disclosed  that,  since  the  service  of  the  writ,  C.  had  in- 
formed him  that  the  note  was  his  property,  and  that  B.  acted  as 
his  agent  fti  taking  it,  but  exhibited  no  evidence  of  his  property 
in  the  note  ;  and  A.  in  his  answer  did  not  state  his  belief  that 
C.'s  statement  was  true,  or  that  the  note  was  C.'s,  and  he  was 
thereupon  charged  as  garnishee,  and  satisfied  the  judgment,  and 
afterwards  was  sued  by  C.  on  the  debt ;  it  was  held,  that  the 
judgment  against  A.,  as  garnishee,  was  a  good  defence  to  the  ac- 
tion ;  the  main  ground  assumed,  being  that  C.  had  failed  to 
exhibit  such  evidence  of  his  title  as  would  authorize  A.  to  express 
his  belief  in  its  existence  and  validity.^ 

§  719.  It  is  still  more  important  that  notice  of  the  transfer  of 
a  note  should  be  given  to  the  maker,  where,  as  in  some  States, 
such  transfer  takes  effect,  as  regards  him,  only  from  the  time  of 
such  notice  ;  for  if,  previous  to  notice,  the  maker  be  subjected  to 
garnishment  as  a  debtor  of  the  payee,  and  be  compelled  to  pay 
the  amount  of  the  note,  the  assignee  cannot  afterwards  maintain 
an  action  against  him.  Thus,  in  Massachusetts,  in  a  suit  brought 
there  by  the  indorsee  against  the  maker  of  a  promissory  note, 
given  in  Connecticut,  by  one  citizen  of  that  State  to  another,  and 
there  indorsed  to  a  citizen  of  Massachusetts,  —  which  note  was 
not  negotiable  by  the  law  of  Connecticut ;  it  was  held  to  be  a 
good  defence,  that  the  maker,  before  he  had  notice  of  the  in- 
dorsement, had  been  summoned  as  garnishee  of  the  payee,  and 
had  paid  the  amount  of  the  note  on  an  execution  issued  against 
him  as  garnishee.^ 

1  Wood   V.   Partridge,  11    Mass.  488;  2  Wentworth  v.  Weymouth,  11  Maine, 

McAllister  v.  Brooks,  22  Maine,  80.  446. 

3  Warren  v.  Copelin,  4  Metcalf,  594. 
[629] 


§  723  WHERE  ATTACHMENT  IS  A  DEFENCE.      [CHAP.  XXXVIII. 

§  720.  In  pleading  a  recovery  against  the  maker  of  a  note,  as 
garnishee  of  the  payee,  it  is  not  necessary  that  the  plea  should 
aver,  in  totidem  verbis,  that  the  maker  had  no  notice  of  the  trans- 
fer of  the  note,  before  he  answered  the  garnishment.  If  he  had 
notice,  the  plaintiff  should  reply  the  fact  and  establish  it.^ 

§  721.  If  the  garnishment  of  the  maker  of  a  note,  and  judg- 
ment against  him,  and  satisfaction  of  the  judgment,  before  he  has 
notice  of  its  transfer,  would  be  held  to  bar  the  right  of  the  holder 
to  recover  against  the  maker,  much  more  will  his  right  be  barred 
where  he  takes  the  note  with  express  notice  of  the  pendency  of 
the  garnishment.^ 

§  722.  In  assumpsit,  the  recovery  and  execution  in  the  attach- 
ment may  either  be  pleaded  specially  or  given  in  evidence  under 
the  general  issue  ;  '^  but  in  debt  on  bond  it  must  be  pleaded.  Care 
must  be  taken  to  plead  it  properly,  for  if  the  defendant  fail  for 
want  of  a  proper  plea,  it  is  said  that  the  party  must  pay  the  money 
over  again,  and  has  no  remedy  either  in  law  or  equity.^ 

§  723.  Neither  in  giving  an  attachment  in  evidence  under  the 
general  issue,  nor  in  pleading  it,  is  the  defendant  bound  to  prove 
that  the  plaintiff  in  the  attachment  had  a  sufficient  cause  of  ac- 
tion. For  it  would  oftentimes  defeat  the  whole  effect  of  the  at- 
tachment laws,  if  the  garnishee  should,  without  the  means  of 
proving  it,  be  held  to  such  proof.^  This,  however,  is  held  only 
in  cases  "where  the  attachment  is  laid  in  the  hands  of  third  per- 
sons ;  not  where  the  party  attaches  money  in  his  own  hands.  In 
that  case,  when  sued  for  the  debt,  the  plaintiff  may  reply  that 
he  was  not  indebted  to  the  defendant,  and  the  defendant  will  be 
held  to  prove  the  debt.^ 

1  Mills  V.  Stewart,  12  Alabama,  90.  5  McDaniel  v.   Hughes,  8  East,  367 ; 

2  Glanton  v.  Griggs,  5  Georgia,  424.  Morris  v.  Ludlam,  2  H.  Black.  362. 

3  Cook  V.  Field,  3  Alabama,  53.  ^  Sergeant    on   Attachment,   2d    Edi- 
*  Turbill's     Case,     1     Saunders,    67,  tion,   166 ;  Paramore  v.   Pain,  Cro.  Eliz. 

Note  1 ;  Coates  v.  Roberts,  4  Rawle,  100.     598  ;  McDaniel   v.   Hughes,  3  East,  367  ; 

Morris  v.  Ludlam,  2  H.  Black.  362. 
[630] 


CHAP.  XXXIX.]    ACTION   FOR    MALICIOUS  ATTACHMENT.  §  726 


CHAPTER    XXXIX. 

ACTION   FOR   MALICIOUS   ATTACHMENT. 

§  724.  In  the  chapter  on  Attachment  Boncls,^  we  considered 
the  responsibility  of  an  attachment  plaintiff  to  the  defendant,  for 
an  attachment  which  was  merely  wrongful,  and  not  obtained  ma- 
liciously and  without  probable  cause.  We  now  propose  an  exam- 
ination of  the  recourse  of  the  defendant,  npon  common-law 
principles,  for  an  attachment  maliciously  sued  out. 

§  725.  Whether  an  attachment  was  wrongfully  sued  out,  can- 
not be  made  the  subject  of  inquiry  between  the  parties  thereto, 
except  in  the  attachment  suit  itself,  or  in  an  action  brought  by 
the  defendant  therein  against  the  plaintiff  for  the  wrong.  Hence 
where  one  whose  property  had  been  attached  and  sold,  brought 
trover  for  the  value  thereof  against  the  attaching  plaintiff,  and  it 
appeared  that  the  attachment  was  issued  conformably  to  statute, 
it  was  held,  that  it  could  not  be  impeached  in  a  collateral  way  in 
such  an  action,  on  the  ground  that  it  was  wrongfully  sued  out.^ 

§  726.  It  has  been  uniformly  held  in  this  country,  that  an 
attachment  plaintiff  may  be  subjected  to  damages  for  attaching 
the  defendant's  property  maliciously  and  without  probable  cause. 
The  defendant's  remedy  in  this  respect  is  not  at  all  interfered 
with  by  the  plaintiff's  having,  at  the  institution  of  the  suit,  given 
a  bond,  Avith  security,  conditioned  to  pay  all  damages  the  defend- 
ant might  sustain  by  reason  of  the  attachment  having  been 
wrongfully  obtained  ;^  nor  is  he  precluded  from  maintaining  his 
action  for  damages  by  his  having  given  a  delivery  bond  for  the 
propert}'  attached  ;^  nor  by  his  having  consented  to  the  dismissal 

1  Ante,  Ch.  VI.  Smith,  9  Robinson  (La.),  418  ;  Preston  v. 

2  Rogers  y.  Pitman,  2  Jones,  56.  Cooper,    1     Dillon,    589;    Lawrence    v. 

3  Sanders  v.  Huglies,  2  Brevard,  495  ;  Hagerman,  56  Illinois,  68  ;  Spaids  v.  Bar- 
Donnell    v.    Jones,    13    Alabama,    490 ;  rett,  57  Ibid.  289. 

Smith  V.  Story,  4  Humphreys,  169  ;  Pettit  *  Alexander  v.  Jacoby,  23  Ohio  State, 

V.  Mercer,  8  B.  Monroe,  51 ;  Senecal  v.     358. 

[631] 


§  728  ACTION   FOR   MALICIOUS  ATTACHMENT.    [CHAP.  XXXIX. 

of  the  attachment  suit.^  On  the  contrary,  a  dismissal  by  stipula- 
tion between  the  parties,  providing  that  each  party  should  pay 
his  own  costs,  is  such  a  determination  of  the  action  in  favor  of 
the  defendant  as  will  enable  him  to  maintain  an  action  for  mali- 
cious prosecution.2  But,  in  the  absence  of  any  statute  conferring 
the  right,  the  defendant  cannot  maintain  an  action  against  the 
plaintiff  for  the  mere  wrongful  suing  out  of  the  attachment. 
Such  an  action,  as  we  have  seen,  may  be  maintained  on  the  at- 
tachment bond ;  ^  but,  on  common-law  principles,  the  element  of 
malice  is  indispensable  to  authorize  an  action  on  the  case.^ 

§  727.  This  action  cannot  be  maintained  against  an  attachment 
plaintiff,  on  account  of  an  attachment  maliciously  obtained  with- 
out his  knowledge,  by  an  attorney-at-law  employed  by  him  to 
collect  a  debt ;  ^  but  the  attorney  is  liable  in  such  case  ;  and 
where  he  and  his  client  act  in  concert  they  are  both  liable.^  And 
where  a  person  gave  another  a  carte  blanche  to  use  his  name  as 
plaintiff  in  prosecuting  suits,  without  requiring  to  be  informed  as 
to  the  facts  and  circumstances  of  the  suit ;  the  two  to  share  the 
compensation  between  them  ;  he  cannot,  if  a  suit  is  commenced 
in  his  name,  maliciously  and  without  probable  cause,  shield  him- 
self from  damages  on  the  ground  of  ignorance,  or  on  the  pre- 
tence that  he  might  have  supposed  there  was  a  good  cause  of 
action.'^ 

§  728.  It  is  no  obstacle  to  the  institution  and  maintenance  of 
this  action,  that  the  attachment  was  obtained  in  a  court  within  a 
foreign  jurisdiction.  The  question  is,  not  where  the  attachment 
issued,  but  whether  it  was  justifiable.  If  issued  in  a  foreign 
State,  the  forms  of  the  proceeding  must  be  tested  by  the  laws  of 
that  State  ;  but  if  valid  in  form,  under  those  laws,  the  question 
still  remains,  whether  the  plaintiff  perverted  those  forms  to  the 
purpose  of  oppression ;  and  this  is  for  the  determination  of  the 
court,  domestic  or  foreign,  in  which  it  may  arise.^ 

1  Spaulding  v.  Wallett,  10  Louisiana  ^  Kirksey  v.  Jones,  7  Alabama,  622. 

Annual,  105.  ®  Wood  v.  Weir,  5  B.  Monroe,  544. 

2  Kinsey  v.  Wallace,  36  California,  ''  Kinsey  v.  Wallace,  36  California, 
462.  462. 

3  Ante,  Ch.  VI.  8  Wiley  v.  Traiwick,  14  Texas,  662. 
*  McKellar    v.   Couch,   34    Alabama, 

336;  Benson  v.  McCoy,  36  Ibid.  710. 
[632] 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS  ATTACHMENT.  §  730 

§  729.  This  action  being  governed  by  the  principles  of  the  com- 
mon law  applicable  to  actions  for  malicious  prosecution,^  case, 
and  not  trespass  vi  et  armis,  is  the  proper  form  of  remedy.^  As 
a  general  rule,  it  will  not  lie  until  the  attachment  shall  have  ter- 
minated in  favor  of  the  defendant ;  ^  but  an  omission  to  aver  in 
the  declaration  its  termination,  is  cured  by  verdict.^  If  in  the 
attachment  suit  the  defendant  has  no  opportunity  to  defend,  this 
rule  does  not  apply.  This  was  so  held  in  New  York,  in  a  case 
where  the  attachment  was  prosecuted  to  judgment  ex  parte,  in  the 
absence  of  the  defendant ;  ^  and  in  Ohio,  where  the  attachment 
was  auxiliary  to  a  pending  suit,  and  the  statute  did  not  authorize 
the  defendant  to  contest  the  truth  of  the  grounds  averred  by  the 
plaintiff  for  obtaining  the  writ.^ 

§  730.  In  Alabama,  it  is  not  sufficient  to  aver  that  the  defendant 
caused  and  procured  an  attachment  to  be  wrongfully  and  mali- 
ciously and  without  probable  cause  sued  out  against  the  plaintiff, 
and  that  the  writ  was  placed  in  the  hands  of  a  sheriff,  and  was 
by  him  executed.  The  defendant  must  be  connected  by  aver- 
ment with  the  execution  of  the  process,  by  delivering  the  writ  to 
the  officer,  or  participating  in  his  proceedings.^  But  in  Missouri, 
this  doctrine  was  not  followed.  There  the  court  said :  "  We  are 
not  willing  to  concede  that  it  is  necessary  to  the  maintenance  of 
the  action  that  the  defendant  should  in  person  deliver  the  writ 
to  the  officer,  or  be  present  and  point  out  the  property  and  tell 
him  what  to  do.  It  is  the  duty  of  the  court  to  deliver  the  pro- 
cess to  its  executive  officer,  and  it  is  the  duty  of  that  officer  to 
levy  the  attachment  on  whatever  property  may  be  necessary  to 
satisfy  the  same.  The  plaintiff  in  the  suit  sets  the  whole  pro- 
ceeding in  motion  by  making  out  the  affidavit,  and  if  he  does  the 
■  same  maliciously,  vexatiously,  and  without  probable  cause,  and 
injury  results  from  his  unlawful  and  wrongful  act,  he  is  liable 
and  must  respond  in  damages.^ 

1  Post,  §  732.  Tliompson,  3  Metcalfe  (Ky.),  121  ;  Feazle 

2  Shaver  v.   White,  6  Munford,  110;     i'.  Simpson,  2  Illinois  (1   Scammon),  30 ; 
Ivy    V.    Barnhartt,    10     Missouri,    151 ;     Spaids  v.  Barrett,  57  Ibid.  289. 

Lovier  v.  Gilpin,  6  Dana,  321.  ^  Bump  v.  Betts,  19  Wendell,  421. 

8  Bump  V.  Betts,   19   Wendell,  421 ;  ^  Fortman   v.  Rottier,  8  Ohio   State, 

Rea    V.    Lewis,    Minor,    882;    Nolle    v.  548. 

Thompson,  3  Metcalfe  (Ky.),  121;  Feazle  ^  Marshall    v.    Betner,   17    Alabama, 

V.  Simpson,  2  Illinois  (1  Scammon),  30.  832. 

*  Rea  I'.  Lewis,  Minor,  382 ;  Nolle  v.  ^  Walser  v.  Thies,  56  Missouri,  89. 

[633] 


§  782  ACTION   FOR   ISrALIClOUS   ATTACHMENT.    [CHAP.  XXXIX. 

§  730  a.  In  such  an  action,  before  the  defendant  can  be  called 
upon  to  sustain  the  trutli  of  the  affidavit  upon  Avhich  the  attach- 
ment was  issued,  the  plaintiff  must  give  some  evidence  of  its 
falsity,  or  of  circumstances  from  which  the  jury  could  infer  its 
falsity.  His  right  to  recover  depends  on  the  vexatious  use  of  the 
process ;  and  to  make  this  out,  the  onus  is,  in  the  first  instance, 
on  him.^ 

§  731.  In  such  an  action  a  return  of  the  sheriff  on  the  attach- 
ment, "  7iot  executed  by  order  of  the  plaintiff,'''  does  not  disprove 
the  fact  that  an  attachment  was  made.  Though  given  in  evidence 
by  the  plaintiff,  he  may  contradict  it,  and  show  by  parol  proof 
that  the  writ  was  executed.^ 

§  732.  The  earliest  adjudication  concerning  this  action  in  this 
country,  with  which  we  have  met,  was  in  Virginia,  in  1803,  when 
it  was  decided  that  no  action  could  be  sustained,  unless  it  ap- 
peared that  the  plaintiff,  in  attaching  the  defendant's  property, 
acted  maliciously  and  without  probable  cause  ;  and  that  it  was 
not  sufficient  for  the  declaration  to  aver  that  the  attachment  was 
"  without  any  legal  or  justifiable  cause  ;  "  but  it  must  allege  the 
want  of  probable  cause.^  This  doctrine  has  since  been  recognized 
and  affirmed  in  Massachusetts,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Ohio,  Illinois,  Tennessee,  Kentucky,  North 
Carolina,  Georgia,  Louisiana,  and  Texas.^     In  Virginia,  however, 

1  O'Grady  v.  Julian,  34  Alabama,  88.  Mitchell  v.  Mattingly,  1  Metcalfe  (Ky.), 
See  Burrows  v.  Lehndorff,  8  Iowa,  96.  237.     In    Wood  v.  Weir,  5   B.  Monroe, 

2  Mott  V.  Smith,  2  Cranch  C.  C.  33.  544,  the   Court  of  Appeals  of  Kentucky 

3  Young  V.  Gregorie,  8  Call,  446;  thus  state  the  doctrine  applicable  to  ac- 
King  f.  Montgomery,  50  California,  115.  tions   for  malicious  suit:  "To  maintain 

4  Lindsay  v.  Larned,  17  Mass.  190 ;  an  action  for  a  malicious  suit,  as  well  as 
Wills  V.  Noyes,  12  Pick.  324  ;  Ives  i'.  for  a  malicious  prosecution,  three  things 
Bartholomew,  9  Conn.  309 ;  Bump  v.  are  necessary  to  be  made  out  by  the 
Betts,  19  Wendell,  421 ;  Boon  v.  Maul,  plaintiff:  1.  A  want  of  probable  cause ; 
Pennington,  2d  Ed.  631  ;  McCullough  v.  2.  Malice  in  the  defendant ;  and  3.  Dam- 
Grishobber,  4  Watts  &  Sergeant,  201  ;  age  to  the  plaintiff.  Malice  may  be  im- 
Tomlinson  v.  Warner,  9  Ohio,  103  ;  Fort-  plied  from  the  want  of  probable  cause, 
man  r.  Rottier,  8  Ohio  State,  548;  Law-  but  this  implication  may  be  explained 
rence  v.  Hagerman,  56  Illinois,  68 ;  Spaids  and  repelled  by  facts  and  circumstances 
V.  Barrett,  57  Ibid.  289 ;  Smith  v.  Story,  indicating  a  fair  and  legitimate  purpose 
4  Humphreys,  169 ;  Williams  v.  Hunter,  and  honest  pursuit  of  a  claim  believed 
3  Hawks,  545;  Senecal  y.  Smith,  9  Rob-  to  be  just.  So,  though  there  be  probable 
inson  (La.),  418;  Wiley  y.  Traiwick,  14  cause,  and  even  just  grounds  for  the  suit, 
Texas,  662;  Sledge  v.  McLaren,  29  if,  from  bad  intentions  or  malicious  mo- 
Georgia,  64;  Accessory  Transit  Co.  v.  tives,  an  illegal,  oppressive,  and  vexa- 
McCerren,   13    Louisiana  Annual,   214  ;  tious  order  is  procured,  by  the  attorney 

[634] 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS  ATTACHMENT.       §  732  a 

in  1859,  it  was  held,  that  under  the  broad  and  comprehensive 
terms  of  the  statute  of  jeofails  of  that  State,  adopted  after  the 
first  ruling  on  this  subject,  as  just  stated,  a  declaration  charging 
that  the  attachment  was  sued  out"  wrongfully  and  without  good 
cause,"  was  good  after  verdict ;  because  proof  that  it  was  sued 
out  maliciously  and  without  probable  cause,  would  be  entirely 
consistent  with  the  allegation  as  laid  ;  and  it  might  well  be  that 
the  same  testimony  relied  on  to  establish  the  latter  would  furnish 
suflEicient  proof  of  the  former.^  And  in  Illinois,  while  it  was 
recognized  that  the  averment  of  the  want  of  probable  cause  is  of 
the  gist  of  the  action,  it  was  considered  that  the  Avords  "  without 
any  reasonable  or  probable  cause "  are  not  indispensable  in  the 
declaration,  provided  language  be  used  having  the  same  meaning, 
and  the  want  of  probable  cause  be  included  in  the  sense  of  the 
declaration. 2 

§  732  a.  The  essential  ground  is,  that  the  proceedings  com- 
plained of  were  had  without  probable  cause  ;  inasmuch  as,  from 
the  want  of  such  cause,  the  other  main  ingredient,  malice,  may 
be,  and  most  commonly  is,  implied ;  ^  while  from  the  proof  of 
even  express  malice  the  want  of  probable  cause  cannot  be  inferred. 
It  is,  therefore,  important  to  determine  what  is  probable  cause. 
It  is  not  referable  to  the  state  of  facts  actually  existing  when  the 
attachment  suit  was  brought,  without  regard  to  whether  the 
plaintiff  therein  knew  of  those  facts,  and  based  his  proceedings 
upon  them  ;  for,  in  the  language  of  the  Court  of  Appeals  of  Vir- 
ginia, that  "  would  be  in  effect  to  allow  a  party  sued  for  a  mali- 
cious prosecution  to  say  to  the  plaintiff,  by  way  of  defence,  '  It 
is  true  you  are  innocent  of  the  offence  with  which  you  were 
charged,  and  at  the  time  of  instituting  the  prosecution  I  knew  of 
no  circumstances  to  justify  me  in  believing  you  to  be  guilty,  and 
did  not  so  believe  ;  but  I  have  since  ascertained  that  there  ex- 
isted at  the  time  certain  facts  and  circumstances,  which,  had 
they  been  then  known  to  me,  would  have  warranted  me  in  be- 
lieving you  guilty.'  "    Probable  cause  is,  therefore,  to  be  referred 

or  client,  or  botli,  without  probable  cause  plained  away  or  repelled  by  counteract- 

or  excuse,  by  which  damage  is  done  to  ing  circumstances." 
the  defendant,  an  action  will  lie  against  *  Spengler  v.  Davy,  15  Grattan,  381. 

them  both.     And  malice  may  be  implied  ^  Spaids  v.  Barrett,  57  Illinois,  289. 

from    the   want  of  probable   excuse,   or  ^  Walser  v.   Tliics,  50   Mi-ssouri,  89; 

grounds  for  the  order,  which  may  be  ex-  Holliday  v.  Sterling,  62  Ibid.  321. 

[685] 


I 


§  734  ACTION   FOR   MALICIOUS  ATTACHMENT.    [CHAP.  XXXIX. 

to  the  justifiable  belief  of  the  party,  based  on  a  knowledge,  at 
the  time,  of  facts  and  circumstances  justifying  that  belief;  or,  in 
others  words,  it  is,  substantially,  belief  founded  on  reasonable 
grounds.^ 

§  733.  The  malice  necessary  to  support  this  action  is  any  im- 
proper motive.  It  need  not  imply  malignity,  nor  even  corruption, 
in  the  appropriate  sense  of  those  terms.  That  which  is  done 
contrary  to  one's  own  conviction  of  duty,  or  with  a  wilful  disre- 
gard of  the  rights  of  others,  whether  it  be  to  compass  some  un- 
lawful end,  or  some  lawful  end  by  unlawful  means,  or  to  do  a 
wrong  and  unlawful  act,  knowing  it  to  be  such,  constitutes  legal 
malice.^  If,  for  instance,  a  person  commence  an  action  by  attach- 
ing the  goods  of  the  defendant,  knowing  that  he  has  no  cause  of 
action,  he  is  considered  to  have  intended  to  vex,  harass,  and  injure 
him ;  and  this  is  sufficient  evidence  of  malice.^  So,  though  he 
have  a  cause  of  action,  if  he  allege,  as  a  ground  for  obtaining  the 
attachment,  that  which  he  knows  to  be  false,  it  is  express  malice.* 
But  the  malice  must  be  against  the  defendant:  if  it  be  directed 
against  a  third  person,  it  will  not  authorize  the  recovery  by  the 
defendant  of  vindictive  damages.^ 

§  734.  In  Massachusetts,  the  action  cannot  be  sustained,  unless 
the  evidence  be  satisfactory  that  the  plaintiff  knew^  when  he  com- 
menced his  action  by  attachment,  that  he  had  no  cause  of  action, 
and  that  he  acted  maliciously  in  that  behalf.  Therefore,  where 
the  declaration  alleged  that  the  attachment  plaintiff  knew  he  had 
no  lawful  cause  of  action  against  the  defendant  when  the  action 
by  attachment  was  commenced,  and  that  he  acted  maliciously  in 
commencing  it  without  any  just  cause,  and  also  in  attaching  and. 
detaining  plaintiff 's  property ;  it  was  held,  that  the  declaration 

1  Spengler  v.  Davy,  15  Grattan,  381.  Alexander  v.  Harrison,  38  Missouri,  258. 
In  Illinois  probable  cause  was  defined  to  In  Alabama  it  was  held,  that  the  obtain- 
be  "  a  reasonable  ground  of  suspicion,  ing  by  the  attachment  plaintiff  of  a  sec- 
supported  by  circumstances  sufficiently  ond  attachment,  a  week  after  that  on  ac- 
strong  in  themselves  to  warrant  a  can-  count  of  which  the  action  for  malicious 
tious  man  in  the  belief  that  the  per-  attachment  is  brought,  might  be  given  in 
son  accused  is  guilty  of  the  oflTence  evidence  on  the  question  of  malice.  Kyall 
charged."     Barrett  v.  Spaids,  70  Illinois,  v.  Marx,  50  Alabama,  31. 

408.  •*  Tomlinson  v.  Warner,  9  Ohio,  103. 

2  Wills  V.  Noyes,  12  Pick.  324 ;  Cul-  »  Wood  v.  Barker,  37  Alabama,  60 ;  1 
bertson  v.  Cabeen,  29  Texas,  247.                  Shepherd's  Select  Cases,  311. 

5"  Ives  V.   Bartholomew,  9  Conn.  309 ; 

[636] 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS  ATTACHMENT.  §  736 

was  not  supported  by  evidence  that  he  had  attached  the  prop- 
erty under  a  belief  that  he  had  a  good  cause  of  action,  and  then 
maliciously  detained  it  after  he  had  learned  that  the  suit  was 
groundless.^ 

§  735.  In  New  Jersey,  it  was  held,  that  an  action  for  malicious 
attachment  would  lie,  where  the  attachment  was  sued  out  of  a 
court  having  no  jurisdiction  ;  and  that  in  the  declaration  it  was 
not  necessary  to  aver  that  the  defendant  kneiv  that  the  court  had 
not  jurisdiction.  And  the  court  refused  to  allow  the  cause  of 
action  for  which  the  attachment  was  obtained  to  be  shown  in 
evidence.^ 

§  736.  The  doctrine  intimated  in  the  last-cited  case  in  Massa- 
chusetts, that  the  plaintiff's  belief  oi  his  having  a  cause  of  action 
will  protect  him  from  an  action  for  malicious  prosecution,  has 
been  distinctly  recognized  and  announced  in  other  States,  in  re- 
lation to  the  grounds  on  which  the  attachment  is  sued  out,  as 
distinct  from  the  question  of  the  existence  of  a  cause  of  action. 
In  North  Carolina,  it  was  decided  that  the  plaintiff's  belief, 
caused  by  the  defendant's  conduct,  that  the  defendant,  as  alleged 
in  the  affidavit,  had  absconded,  was  sufficient  to  protect  the  plain- 
tiff from  this  action,  although  in  fact  the  defendant  had  not  ab- 
sconded.^ So,  in  Pennsylvania  it  was  held,  that  the  question  was 
not  whether  the  attachment  defendant  had  really  absconded,  but 
whether  his  conduct  was  such  as  to  justify  the  plaintiff's  appre- 
hensions, and  to  make  recourse  to  the  attachment  a  measure  of 
reasonable  precaution.*  So,  in  Tennessee,  where  the  plaintiff 
sued  out  an  attachment  on  the  ground  that  the  defendant  was  a 
non-resident  of  the  State,  when  it  appeared  that,  though  he  had 
been  two  years  absent  from  the  State,  and  had  avowed  his  inten- 
tion to  remove,  yet  he  had  not  in  fact  changed  his  domicile  ;  and 
the  attachment  was  dismissed ;  and  the  defendant  brought  his 
action  against  the  plaintiff  for  damages  ;  it  was  held,  that  a 
recovery  could  not  be  had  merely  on  the  ground  that  the  attach- 
ment had  been  obtained  when  it  ought  not  to  have  been,  but  that 


1  Stone  V.  Swift,  4  Pick.  389 ;  Alex-  '  Williams  v.  Hunter,  3  Hawks,  545. 
ander  i'.  Harrison,  38  Missouri,  258.  *  McCullough  v.  Grishobber,  4  Watts 

2  Boon  V.  Maul,  Pennington,  2d  Ed.     &  Sergeant,  201. 
631. 

[637] 


§  738  ACTION  FOR  MALICIOUS   ATTACHMENT.    [CHAP.  XXXIX. 

the  probable  cause  given  by  the  defendant  must  be  taken  into 
consideration  as  a  defence.^ 

§  737.  But  though  the  plaintiff's  belief  may  protect  him  from 
an  action  for  malicious  prosecution,  the  question  still  arises,  as 
to  what  will  justify  such  a  belief.  In  reference  to  the  cause  of 
action  it  may  be  easy  to  show  the  grounds  of  the  belief;  but  per- 
haps not  so,  in  regard  to  the  special  ground  laid  for  obtaining  the 
attachment.  In  such  case  it  has  been  considered,  that  mere  rep- 
resentations made  to  the  plaintiff  by  third  parties,  that  the  defend- 
ant was  about  to  abscond,  without  any  evidence  that  the  charge 
was  true,  or  that  the  plaintiff  had  any  reason  to  believe  it  true, 
or  made  any  inquiry  into  the  matter,  were  no  ground  of  defence 
to  him  when  sued  for  malicious  prosecution.^ 

§  738.  In  Alabama,  where,  as  we  have  seen,^  actual  damage 
for  a  merely  wrongful  attachment  may  be  recovered,  when  no 
malice  existed  or  is  averred,  the  plaintiff's  belief  of  the  existence 
of  a  cause  of  action,  or  of  facts  authorizing  the  issue  of  an  at- 
tachment, may  be  given  in  evidence  to  repel  the  presumption  of 
malice,  and  thereby  prevent  the  recovery  of  exemplary  or  vindic- 
tive damages ;  '^  and  the  declarations  which  the  jjlaintiff  made  at 
the  time  the  attachment  was  issued,  as  to  his  reasons  for  having 
it  issued,  may  be  given  in  evidence  as  a  part  of  the  res  gestceJ' 
And  so,  in  Louisiana,  it  was  considered  that  if  it  was  apparent 
that  the  plaintiff  in  the  attachment  had  a  sufficient  or  very  prob- 
able cause  of  action,  and  was  prevented  from  gaining  a  judgment 
by  some  technical  objection,  or  irregularity  in  the  proceedings, 
which  could  not  be  foreseen,  the  probability  and  justice  of  the 
demand  might  be  pleaded,  and  given  in  evidence  in  mitigation  of 
a  claim  for  vindictive  damages.^ 

These  cases  are  equivalent  to  a  recognition  of  the  common-law 
principle  we  have  been  considering ;  for  it  is  admitted  that  the 
plaintiff's  belief,  on  proper  grounds,  would  be  sufficient  to  pro- 
tect him  from  a  recovery  of  those  damages  which,  but  for  pecul- 
iar statutes,  would  be  authorized  by  the  common  law,  and  could 
be  recovered  only  on  common-law  grounds. 

1  Smith  V.  Story,  4  Humphreys,  169.  5  -Wood   v.  Barker,    37   Alabama,  60; 

2  Schrimpf  v.  McArdle,  li^  Texas,  368.  1  Sheplierd's  Sel.  Cases,  311. 

3  Ante,  §  157.  •>  Cox  v.  Kobmson,  2  llobinson  (La.), 
•»  Donnell  y.  Jones,  13  Alabama,  490 ;  313. 

White  V.  Wyley,  17  Ibid.  167. 

[638] 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS  ATTACHMENT.  §  741 

§  739.  In  the  cases  cited,  in  which  the  probable  cause  for  the 
attachment  is  inquired  into  as  a  bar  to  the  action,  it  will  be  found 
that  no  opportunity  existed  to  investigate  and  determine  that 
point  in  the  attachment  suit.  Where,  as  in  some  States,  the 
attachment  defendant  may  preliminarily  controvert  and  disprove 
the  truth  of  the  affidavit  on  which  the  attachment  issued,  that 
point  could  not  properly  become  the  subject  of  investigation  in 
the  action  for  malicious  prosecution.  For  if  the  truth  of  the 
affidavit  was  tried  in  the  attachment  suit,  and  determined  against 
the  plaintiff  there,  the  matter  would  be  res  adjudicata,  and  of 
course  he  could  not,  when  sued  by  the  defendant,  set  up  the 
truth  of  the  affidavit  as  a  defence. ^  On  the  other  hand,  the  at- 
tachment defendant,  if  the  affidavit  should  have  been  found  to 
be  true,  would  be  equally  precluded,  in  the  action  for  malicious 
prosecution,  from  contesting  that  point ;  or  if  he  failed  to  put  it 
in  issue  in  the  attachment  suit,  it  would  be  an  admission  of  the 
allegation  in  the  affidavit,  which  he  could  not  afterwards  retract 
or  deny. 

§  740.  But  even  wliere  this  course  may  be  pursued,  it  has  been 
held,  that  an  appearance  to  the  attachment,  entering  special  bail, 
and  confessing  judgment  for  only  a  part  of  the  sum  demanded, 
is  not  a  waiver  of  the  injury  ;  for,  said  the  court,  "  the  defendant 
had  no  alternative  but  to  enter  special  bail  or  see  his  property 
sacrificed  for  what  was  in  fact  not  due.  An  appearance  thus  ex- 
torted, is  surely  not  an  admission  that  the  means  employed  were 
legal ;  and  a  creditor  cannot  compel  the  payment,  even  of  a  just 
debt,  by  illegal  means."  ^ 

§  741.  In  a  suit  for  wrongfully  and  vexatiously  suing  out  an 
attachment,  on  the  ground  of  an  intended  departure  of  the  debtor 
from  the  State,  it  is  not  admissible  for  the  defendant  to  give  in 
evidence,  as  proof  of  probable  cause,  dechirations  of  the  debtor 
made  a  few  days  before  the  issue  of  the  attachment,  which,  when 
it  was  issued,  had  not  come  to  the  knowledge  of  the  attachment 
plaintiff.  Declarations  accompanying  an  act  of  a  party,  from 
which  act  an  inference  is  sought  to  be  drawn  prejudicial  to  him, 
are  admissible  in  evidence,  as  characterizing  the  act,  and  as  ex- 

1  Hayden  v.  Sample,  10  Missouri,  215. 

2  Foster   v.    Sweeny,    14    Sergeant  &  Rawle,  386. 

[639] 


\ 


§  743  ACTION   FOR   MALICIOUS  ATTACHMENT.    [CHAP.  XXXIX. 

plaiKitoiy  of  the  intention  with  which  it  was  done.  But,  to  form 
a  part  of  the  res  gestce,  such  declarations  must  be  made  at  the 
time  the  act  they  are  supposed  to  characterize  was  done,  and 
must  be  calculated  to  elucidate  and  unfold  the  nature  and  qual- 
ity of  the  facts  they  were  intended  to  explain,  and  so  to  harmo- 
nize with  those  facts  as  obviously  to  constitute  one  transaction. 
Declarations  not  of  this  character,  whether  made  before  or  after 
the  act  with  which  it  is  sought  to  connect  them,  are  not  part  of 
the  res  gesta.',  but  independent  facts,  and  are  not  admissible  in 
evidence.^ 

§  742.  In  such  a  case  as  that  stated  in  the  previous  section,  it 
is  equally  inadmissible  for  the  plaintiff  to  rebut  the  evidence  of 
probable  cause,  by  proof  that  it  was  generally  reputed  in  the 
neighborhood  in  which  he  lived  that  he  was  going  abroad  on  a 
temporary  visit  and  would  shortly  return.^ 

§  742  a.  As  neither  indebtedness,  pecuniary  embarrassment, 
nor  insolvency  is,  per  se,  a  ground  for  attachment,  so  neither  can 
justify  the  wrongful  suing  out  of  an  attachment,  or  mitigate  the 
offence  of  malice  in  obtaining  it.  The  pecuniary  condition  of 
the  defendant  is  only  admissible  in  evidence  on  a  trial  of  an  ac- 
tion for  malicious  attachment,  when  it  contributes  to  support 
some  proposition  which  becomes  material  on  the  trial.  Thus, 
where  evidence  was  given  of  a  sale  by  the  attachment  defendant 
of  property  at  "  a  low  down  price ;  "  and  further  evidence  was 
given  that  the  defendant,  not  long  before  the  attachment  issued, 
admitted  "  that  he  was  involved,"  and  "  that  he  was  broke  ;  "  it 
was  held,  that  this  evidence  was  clearly  pertinent  to  the  question 
of  the  bona  fides  of  the  sale ;  though  standing  alone,  it  would  be 
inadmissible  in  justification  or  mitigation  of  the  offence  of  malice.^ 
And  the  insolvency  of  the  attachment  defendant  may  be  given 
in  evidence  as  a  circumstance  to  be  considered  by  the  jury  in 
ascertaining  the  damage  he  had  sustained  by  his  credit  being 
injured.* 

§  743.  It  has  been  decided  in  Alabama,  that  the  attachment 
plaintiff,  when  sued  for  malicious  prosecution,  is  not  confined,  in 

1  Havis  V.  Taylor,  13  Alabama,  324.  3  Lockhart  v.  Woods,  38  Alabama,  631. 

2  Havis  V.  Taylor,  13  Alabama,  324 ;  ■*  Donnell  v.  Jones,  13  Alabama,  490. 
Pitts  V.  Burroughs,  6  Ibid.  733.                      See  Mayfield  v.  Cotton,  21  Texas,  1. 

[640] 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS   ATTACHMENT.  §  744 

his  defence,  to  showing  that  the  facts  on  which  he  sued  out  the 
attachment  existed  and  amounted  to  a  probable  cause ;  but  he 
may  show  that  other  causes  existed,  for  which,  under  the  stat- 
ute, the  attachment  might  have  issued.  For  instance,  where  the 
ground  on  which  the  attachment  was  obtained  was,  that  the  de- 
fendant was  about  to  dispose  of  his  property  fraudulently,  with 
intent  to  avoid  the  payment  of  the  debt  sued  for;  it  was  held,  in 
the  action  for  malicious  prosecution,  that  the  question  was,  not 
whether  the  precise  ground  stated  in  the  affidavit  was  true,  but 
whether  the  attachment  was  wrongfully  or  vexatiously  sued  out ; 
and  that  it  was  a  complete  defence,  if  the  attachment  plaintiff 
could  show  that  any  one  of  the  causes  existed  which  would  have 
warranted  him  in  resorting  to  the  process ;  for  instance,  that  the 
defendant  was  about  to  remove  his  property  out  of  the  State, 
with  intent  to  avoid  the  payment  of  the  debt  upon  which  the 
attachment  was  founded. ^  In  the  same  State,  it  was  also  inti- 
mated, that  it  might  be  shown  to  the  jury,  to  repel  the  presump- 
tion of  malice,  that  the  plaintiff  was  indebted  to  the  defendant 
in  another  State,  and  ran  away  from  there  with  his  property  to 
avoid  the  payment  of  his  debts.^  And  it  was  there  decided,  that 
while  it  was  inadmissible  for  the  defendant  to  prove  that,  when 
he  sued  out  his  attachment,  there  was  another  attachment  in  the 
hands  of  the  sheriff  against  the  same  party,  yet  he  might  prove 
that  another  attachment  had  been  issued,  and  his  knowledge  of 
that  fact,  previous  to  the  issuing  of  his  attachment,  as  tending 
to  rebut  the  presumption  of  malice  in  him.^  And  so  he  may 
show  in  evidence  that  the  attachment  was  taken  out  under  ad- 
vice of  counsel ;  which  is  good  to  rebut  the  idea  of  malice,  but 
not  as  a  justification.^ 

§  744.  When,  in  the  attachment  suit,  the  plaintiff  shall  have 
recovered  judgment,  it  is,  until  reversed,  conclusive  of  probable 
cause,  so  far  as  indebtedness  enters  into  that  question  ;  and  in  the 
action  for  malicious  attachment  there  can  be  no  re-examination 
of  that  point."     Not  so,  however,  when  the  judgment  in  the  at- 

»  Kirksey  v.  Jones,  7  Alabama,  622;  653;  Goldsmith  v.  Picard,  27  Ibid.  142; 
Lockhart  v.  Woods,  .38  Ibid.  631.  Lockhart  v.  Woods,  38  Ibid.  631. 

-Melton   I'.   Troutman,  15  Alabama,  ^  ]{aver  y.  Webster,  3  Iowa,  502 ;  Stone 

535.  V.  Swift,  4  Pick.  389;  Alexander  v.  Har- 

3  Yarbrough  v.  Hudson,  19  Alabama,     rison,  38  Missouri,  258. 

5  Jones  V.  Kirksey,  10  Alabama,  839. 


41 


[041] 


§  745  ACTION   FOR   MALICIOUS    ATTACHMENT.    [CHAP.  XXXIX. 

tacliment  suit  shall  have  been  for  the  defendant.  There,  the 
attachment  plaintiff,  when  sued  for  malicious  attachment,  may, 
in  order  to  show  probable  cause,  give  evidence  to  prove  that  there 
was  a  debt,  though  he  failed  to  recover  on  it.  The  question  is 
not  whether  a  demand  shall  be  recovered,  upon  which  a  jur}^  has 
before  passed,  and  the  court,  upon  their  verdict,  has  considered 
ought  not  to  be  recovered  ;  but  whether  the  attachment  plaintiff 
had  probable  cause  for  instituting  the  proceeding,  and,  if  he  had 
not,  whether  he  was  influenced  by  malice.  Any  evidence,  then, 
which  goes  to  establish  the  existence  of  the  demand  at  the  time 
the  attachment  was  issued,  tends  to  prove  probable  cause,  and  to 
rebut  the  presumption  of  malice  which  would  arise  from  the  dis- 
charge of  the  defendant  in  the  attachment  suit.^ 

§  745.  The  rules  as  to  damages,  applicable  in  other  cases  of 
malicious  prosecution,  apply  to  actions  for  malicious  attachment. 
Those  rules  are  thus  expressed  by  Mr.  Greenleaf :  "  Whether  the 
plaintiff  has  been  prosecuted  by  indictment,  or  by  civil  proceed- 
ings, the  principle  of  awarding  damages  is  the  same ;  and  he  is 
entitled  to  indemnity  for  the  peril  occasioned  him  in  regard  to 
his  life  and  liberty,  for  the  injury  to  his  reputation,  his  feelings, 
and  his  person,  and  for  all  the  expenses  to  which  he  necessarily 
has  been  subjected.  And  if  no  evidence  is  given  of  particular 
damages,  yet  the  jur}^  are  not  therefore  obliged  to  find  nominal 
damages  only.  Where  the  prosecution  was  by  suit  at  common 
law,  no  damages  will  be  given  for  the  ordinary  taxable  costs,  if 
they  were  recovered  in  that  action ;  but  if  there  was  a  malicious 
arrest,  or  the  suit  was  malicious  and  without  probable  cause,  the 
extraordinary  costs,  as  between  attorney  and  client,  as  well  as 
all  other  expenses  necessarily  incurred  in  defence,  are  to  be  taken 
into  the  estimate  of  damages."  ^ 

In  Alal)ama  it  was  held,  that  fees  paid  to  counsel  for  defend- 
ing the  original  suit,  if  reasonable  and  necessarily  incurred,  might 
be  proven  and  taken  into  consideration  by  the  jury  in  the  assess- 
ment of  damages  ;^  and  that  injuries  to  the  credit  and  business 
of  a  merchant,  resulting  from  taking  out  an  attachment  against 
him  on  the  ground  of  fraud,  might  legitimately  be  averred  and 

1  Marsliall  v.  Betner,  17  Alabama,  832.  2  2   Greenleaf  on   Evidence,    §    456 ; 

See  Gaddis  v.  Lord,  10  Iowa,  141.  Walser  v.  Thies,  56  Missouri,  89. 

8  Marshall  v.  Betner,  17  Alabama,  832. 
[6421 


CHAP.  XXXIX.]    ACTION   FOR   MALICIOUS  ATTACHIVIENT.  §  745 

proved.^  And  so  in  Illinois.^  But  where,  in  such  a  case,  a  wit- 
ness was  asked  "  what  was  the  usual  profit  made  by  such  estab- 
lishments in  the  neighborhood  of  the  plaintiff,  in  the  same  kind 
of  business,"  the  question  was  held  inadmissible,  because  such 
testimony  could  furnish  no  reliable  data  for  determining  the  loss 
sustained  by  the  jjlaintiff;  while  its  tendency  was  to  multiply 
the  issues  before  the  jury  almost  indefinitely .^ 

1  Goldsmith   v.   Picard,  27   Alabama,  ^  Lawrence  y.Hagerman,  56  Illinois,  68. 

142  ;  O'Grady  v.  Julian,  34  Ibid.  88.  3  O'Grady   v.  Julian,  34  Alabama,  88. 

[643] 


APPENDIX. 


THE  LEADIXG  STATUTORY  PROVISIONS  OF  THE  SEVERAL  STATES  AND 
TERRITORIES  OF  THE  UNITED  STATES,  IN  RELATION  TO  SUITS  BY 
ATTACHMENT. 

ALABAMA. 

Attachments  may  issue  —  I.  To  enforce  the  collection  of  a  debt, 
whether  it  be  clue  or  not  at  the  time  the  attachment  is  taken  out : 
II.  For  any  moneyed  demand  the  amount  of  which  can  be  certainly 
ascertained :  III,  To  recover  damages  for  a  breach  of  contract,  when 
the  damages  are  not  certain  and  Uquidated  :  IV.  When  the  action 
sounds  in  damages  merely. 

The  following  are  the  grounds  upon  which  an  attachment  may  be 
obtained :  — 

1.  AVhen  the  defendant  resides  out  of  the  State  ;  or, 

2.  Absconds  ;  or, 

3.  Secretes  himself  so  that  the  ordinary  process  of  law  cannot  be 
served  on  him  ;  or, 

4.  Is  about  to  remove  out  of  the  State ;  or, 

5.  Is  about  to  remove  his  property  out  of  the  State,  so  that  the 
plaintiff  will  probably  lose  his  debt,  or  have  to  sue  for  it  in  another 
State ;  or, 

6.  Is  about  fraudulently  to  dispose  of  his  property ;  or, 

7.  Has  fraudulently  disposed  of  his  property ;  or, 

8.  Has  money,  property,  or  effects,  liable  to  satisfy  his  debts,  which 
he  fraudulently  withholds. 

In  cases  where  the  cause  of  action  comes  under  either  of  the  first 
two  classes  above  named,  the  plaintiff,  his  agent  or  attorney,  must 
make  affidavit  of  the  amount  of  the  debt  or  demand,  and  that  it  is 
justly  due  ;  and  that  one  of  the  enumerated  grounds  of  attachment 
exists ;  and  that  the  attachment  is  not  sued  out  for  the  purpose  of 
vexing  or  harassing  the  defendant. 


G46  APPENDIX. 

In  cases  where  the  cause  of  action  comes  under  either  of  the  last 
two  chisses  above  named,  the  phuntiff,  his  agent  or  attorney,  in  addition 
to  the  affidavit  required  in  otlier  cases,  must  make  affidavit  of  the 
special  facts  and  circumstances,  so  as  to  enable  the  officer  granting  the 
writ  to  determine  the  amount  for  which  a  levy  must  be  made. 

Before  the  writ  issues,  the  plaintiff,  his  agent  or  attorney,  must  execute 
a  bond  in  double  the  amount  claimed  to  be  due,  with  sufficient  surety, 
payable  to  the  defendant,  with  condition  that  the  plaintiff  will  prose- 
cute the  attachment  to  effect,  and  pay  the  defendant  all  such  damages 
as  he  may  sustain  from  the  wrongful  or  vexatious  suing  out  the  attach- 
ment. 

A  non-resident  of  this  State  may  sue  out  an  attachment  against  a 
non-i'esident  for  an  existing  debt,  or  ascertained  liability ;  but  the  plain- 
tiff, his  agent  or  attorney,  must,  in  addition  to  the  oath  in  other  cases, 
swear  that,  according  to  the  best  of  his  knowledge,  information,  and 
belief,  the  defendant  has  not  sufficient  property  within  the  State  ot  his 
residence,  wherefrom  to  satisfy  the  debt;  and  must  also  give  bond  as 
in  other  cases,  with  surety  resident  in  this  State. 

Attachment  may  issue  against  a  foreign  corporation  for  the  recovery 
of  debts,  or  to  recover  damages  for  a  breach  of  contract  when  the 
damages  are  not  certain  or  liquidated,  or  in  cases  where  the  action 
sounds  in  damages  merely,  in  the  same  manner  and  subject  to  the 
same  rules  as  in  cases  of  non-residents. 

Attachments  are  levied  on  real  and  personal  estate,  and  under  them 
garnishees  are  summoned,  who  must  answer  under  oath.^ 

ARKANSAS. 

The  plaintiff  in  a  civil  action  may,  at  or  after  the  commencement 
thereof,  have  an  attachment  against  the  property  of  the  defendant,  in 
the  cases  and  upon  the  grounds  hereinafter  stated. 

I.  In  an  action  for  the  recovery  of  money,  where  the  action  is 
against  — 

1.  A  defendant  who  is  a  foreign  corporation,  or  a  non-resident  of 
the  State ;  or, 

2.  Who  has  been  absent  therefrom  four  months ;  or, 

3.  Has  departed  from  this  State,  with  intent  to  defraud  his  cred- 
itors; or, 

4.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons;  or, 

5.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him;  or, 

6.  Is  about  to  remove  or  has  removed  his  property,  or  a  material 

1  Code  of  Alabama,  1876. 


APPENDIX.  6'47 

part  thereof,  out  of  this  State,  not  leaving  enough  therein  to  satisfy 
the  plaintiff's  claim,  or  the  claim  of  the  defendant's  creditors ;  or, 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or 
suffered  or  pennitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat, 
hinder,  or  delay  his  creditors  ;  or, 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property, 
with  such  intent. 

An  attachment  shall  not  be  gi-anted  on  the  ground  that  the  defend- 
ant is  a  foreign  corporation,  or  a  non-resident  of  this  State,  for  any 
claim  other  than  a  debt  or  demand  arising  upon  contract. 

II.  An  attachment  may  be  issued  against  the  property  of  a  defend- 
ant in  an  action  to  recover  possession  of  personal  property,  where  it 
has  been  ordered  to  be  delivered  to  the  plaintifl",  and  where  the  prop- 
erty, or  part  thereof,  has  been  disposed  of,  concealed,  or  removed,  so 
that  the  order  for  its  delivery  cannot  be  executed  by  the  officer. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought  for  the  recovery  of  money,  where  there  is  filed 
in  his  office  an  affidavit  of  the  plaintiff,  or  some  one  in  his  behalf, 
showing  — 

1.  The  nature  of  the  plain tiflfs  claim : 

2.  That  it  is  just: 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to 
recover :  and, 

4.  The  existence  in  the  action  of  some  one  of  the  grounds  for  an 
attachment  above  enumerated  under  the  first  subdivision  and  in  the 
case  mentioned  in  the  second  subdivision,  where  it  is  shown  by  such 
affidavit,  or  by  the  return  of  the  sheriff  or  other  officer  upon  the  order 
for  the  delivery  of  the  property  claimed,  that  the  facts  mentioned  in 
that  subdivision  exist. 

When  the  return  by  the  proper  officer,  upon  a  summons  against  a 
defendant,  states  that  he  has  left  the  county  to  avoid  the  service  of 
the  summons,  or  has  concealed  himself  therein  for  that  purpose,  it 
shall  be  equivalent  to  the  statement  of  fact  in  the  affidavit. 

An  order  of  attachment  cannot  be  issued  until  there  has  been  exe- 
cuted in  his  office,  by  one  or  more  sufficient  sureties  of  the  plaintiff, 
a  bond  to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all 
damages  which  he  may  sustain  by  reason  of  the  attachment,  if  the 
order  is  wrongfully  obtained. 

In  an  action  brought  by  a  creditor  against  his  debtor,  the  plaintiff 
may,  before  his  claim  is  due,  have  an  attachment  against  the  property 
of  the  debtor,  where  — 

1.  He  has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or 
suffered  or  permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat 
or  defraud  his  creditors,  or  to  hinder  or  delay  them  in  the  collection 
of  their  debts  ;  or, 


G-iS  APPENDIX. 

2.  Is  abo\it  to  make  such  fraudulent  sale,  conveyance,  or  disposition 
of  his  jiroperty,  with  such  intent ;  or, 

3.  Is  about  to  remove  his  ])ro]K'rty,  or  a  material  part  thereof,  out 
of  tliis  State,  with  the  intent  or  to  tlie  effect  of  cheating  or  defraud- 
ing his  creditors,  or  of  liindering  or  delaying  them  in  the  collection  of 
their  debts. 

The  attachment  authorized  to  be  issued  where  the  demand  is  not  yet 
due  may  not  be  granted  by  the  clerk,  but  by  the  court  in  which  the 
action  is  brought,  or  by  the  judge  thereof,  or  any  judge  of  the  Supreme 
Court,  or  circuit  judge,  in  vacation,  where  the  complaint,  verified  by 
the  oath  of  the  plaintiff,  shows  any  of  the  grounds  for  attachment  last 
enumerated,  and  the  nature  and  amount  of  the  plaintiff's  claim,  and 
when  it  will  become  due. 

An  order  of  attachment  binds  the  defendant's  property  in  the 
county  which  might  be  seized  under  an  execution  against  him,  from 
the  time  of  the  delivery  of  the  order  to  the  sheriff*,  in  the  same  manner 
as  an  execution  would  bind  it ;  and  the  lien  to  the  plaintiff"  is  completed 
upon  any  property  or  demand  of  the  defendant,  by  executing  the  order 
upon  it. 

Under  an  order  of  attachment,  all  real  and  personal  property,  includ- 
ing stock  in  corporations,  may  be  attached  ;  and  garnishees  may  be 
summoned,  and  compelled  to  answer. 

Wherever,  in  a  civil  action,  the  plaintiff"  shall  have  reason  to  believe 
that  any  other  person  is  indebted  to  the  defendant,  or  has  in  his  hands 
or  possession  goods  and  chattels,  moneys,  credits,  and  eff'ects,  belong- 
ing to  such  defendant,  the  plaintiiFmay  sue  out  a  writ  of  garnishment, 
setting  forth  his  cause  of  action  against  the  defendant,  and  command- 
ing the  officer  to  summon  the  person  therein  named  as  garnishee,  to 
appear  at  the  return  day  of  the  summons  in  the  action,  if  the  writ 
shall  have  been  issued  at  the  commencement  thereof;  and  if  not  so 
issued  on  such  day  as  the  court  shall  designate,  to  answer  what  goods, 
chattels,  moneys,  credits,  and  eff^ects  he  may  have  in  his  hands,  be- 
longing to  such  defendant ;  and  in  all  such  actions,  where  the  plaintiff" 
shall  have  obtained  judgment,  he  may  sue  out  a  writ  of  garnishment, 
setting  forth  such  judgment,  and  shall  proceed  in  the  manner  herein 
directed  for  the  enforcement  and  collection  thereof.  The  plaintiff's 
in  all  cases  of  garnishment  may  also  have  an  attachment  against  the 
property  of  a  garnishee  who  is  made  a  defendant  thereto,  by  stating 
in  his  affidavit  some  one  or  more  of  the  grounds  of  attachment  above 
mentioned,  and  the  amount  which  the  garnishee  is  indebted  to  the 
principal  debtor,  and  executing  bond  to  said  garnishee.-^ 

1  Gantt's  Arkansas  Digest,  1874. 


APPENDIX.  649 

CALIFORNIA. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterward,  may  have  the  property  of  the  defendant  attached  as  secu- 
rity for  the  satisfaction  of  any  judgment  that  may  be  recovered,  unless 
the  defendant  give  security  to  pay  such  judgment,  in  the  following 
cases : — 

I.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  where  the  contract  is  made  or  is  payable  in  this 
State,  and  is  not  secured  by  any  mortgage  or  lien,  upon  real  or  per- 
sonal property,  or  any  pledge  of  personal  property ;  or,  if  originally  so 
secured,  such  security  has,  without  any  act  of  the  plaintiff,  or  the 
person  to  whom  the  security  was  given,  become  valueless. 

II.  In  an  action  upon  a  contract,  exjjress  or  implied,  against  a  de- 
fendant not  residing  in  this  State. 

The  clerk  of  the  court  issues  the  writ  of  attachment  upon  receiving 
an  affidavit  by,  or  on  behalf  of,  the  plaintiff,  showing  — 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness,  over  and  above  all  legal  set-offs  and 
counter-claims),  upon  a  contract,  express  or  implied,  for  the  direct  pay- 
ment of  money,  and  that  such  contract  was  made  or  is  payable  in  this 
State,  and  that  the  payment  of  the  same  has  not  been  secured  by  any 
mortgage,  lien,  or  pledge  upon  real  or  personal  property ;  or,  if  origi- 
nally so  secured,  that  such  security  has,  without  any  act  of  the  plaintiff, 
or  the  person  to  whom  the  security  was  given,  become  valueless ;  or, 

2.  That  the  defendant  is  indebted,  to  the  plaintiff  (specifying  the 
amount  of  such  indebtedness,  as  near  as  may  be,  over  and.  above  all 
legal  set-offs  or  counter-claims),  and  that  the  defendant  is  a  non- 
resident of  the  State  ;  and, 

3.  That  the  attachment  is  not  sought,  and  the  action  is  not  prose- 
cuted, to  hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 

Before  issuing  the  writ,  the  clerk  shall  require  a  written  undertak- 
ing on  the  part  of  the  plaintiff,  in  a  sura  not  less  than  two  hundred 
dollars,  and  not  exceeding  the  amount  claimed  by  the  plaintiff,  with 
sufficient  sureties,  to  the  effect  that,  if  the  defendant  recover  judgment, 
the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  sum  specified  in  the  undertaking. 

Under  the  writ,  all  descriptions  of  property  may  be  attached,  includ- 
ing rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  and  all  debts  due  the  defendant ;  and  gar- 
nishees may  be  summoned  and  charged,  not  only  on  account  of  their 
own  debt  to  the  defendant,  but  on  account  of  credits  in  their  hands 
belonging  to  him.^ 

1  2  Hittell's  Codes  and  Statutes  of  California,  1876. 


650  APPENDIX. 


COLORADO. 


The  plaintitf,  nt  the  time  of  issuing  the  summons  in  an  action  on 
contract,  express  or  implied,  or  at  any  time  afterwards  before  judg- 
ment, may  obtain  an  attachment  against  the  property  of  tlie  defendant, 
unless  the  defendant  give  good  and  sufficient  security  to  secure  the 
payment  of  such  judgment. 

The  plaintiff,  his  agent  or  attorney,  or  some  credible  person  for  him, 
must  make  affidavit  that  the  defendant  is  indebted  to  him ;  stating  the 
nature  and  amount  of  the  indebtedness,  as  near  as  may  be,  and  alleg- 
ing any  one  or  more  of  the  following  causes  for  attachment ;  viz.,  — 

1.  That  the  defendant  is  not  a  resident  of  this  State  ;  or, 

2.  Is  a  foreign  corporation  ;  or, 

3.  Is  a  corporation  whose  chief  office  or  place  of  business  is  out  of 
the  State ;  or, 

4.  Conceals  himself,  or  stands  in  defiance  of  an  officer,  so  that 
process  of  law  cannot  be  served  upon  him ;  or  has  for  more  than  four 
months  been  absent  from  the  State ;  or  that,  for  such  length  of  time, 
his  whereabouts  has  been  unknown,  and  that  the  indebtedness  men- 
tioned in  the  affidavit  has  been  due  during  all  that  period ;  or, 

5.  Is  about  to  remove  his  property  or  effects,  or  a  material  part 
thereof,  out  of  this  State,  with  intent  to  defraud  or  hinder  or  delay 
his  creditors,  or  some  one  or  more  of  them ;  or, 

6.  Has  fraudulently  conveyed  or  transferred  or  assigned  his  property 
or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or  more 
of  them  ;  or, 

7.  Has  fraudulently  concealed  or  removed  or  disposed  of  his  property 
or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or  more 
of  them ;  or, 

8.  Is  about  fraudulently  to  convey  or  transfer  or  assign  his  property 
or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or  more 
of  them ;  or, 

9.  Is  about  fraudulently  to  conceal  or  remove  or  dispose  of  his 
property  or  effects,  so  as  to  hinder  or  delay  his  creditors ;  or  that  he 
has  departed,  or  is  about  to  depart,  from  this  State,  with  the  intention 
of  having  his  effects  removed  from  this  State  ;  or, 

11.  Has  failed  or  refused  to  pay  the  price  or  value  of  any  work  or 
labor  done  or  performed,  or  for  any  services  rendered  by  the  plaintiff, 
at  the  instance  of  the  defendant,  and  which  should  have  been  paid  at 
the  completion  of  such  work,  or  when  such  services  were  fully  ren- 
dered ;  or, 

12,  Fraudulently  contracted  the  debt,  or  fraudulently  incurred  the 
liability,  respecting. which  the  suit  is  brought,  or  by  false  representa- 
tions or  false  pretences,  or  by  any  fraudulent  conduct,  procured  money 
or  i^roperty  of  the  plaintiff. 


APPENDIX.  651 

Before  issuing  the  writ  the  plaintiff  must  file  a  written  undertaking, 
with  sufficient  sureties,  to  be  approved  by  the  clerk,  in  a  sum  not  less 
than  double  the  amount  claimed,  to  the  effect  that  if  the  defendant 
recover  judgment,  or  if  the  court  shall  finally  decide  that  the  plaintiff 
was  not  entitled  to  an  attachment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages  he  may  sustain  by 
reason  of  the  wrongful  suing  out  of  the  attachment,  not  exceeding  the 
sum  specified  in  the  undertaking. 

Attachment  may  be  obtained  on  a  debt  not  due  in  any  of  the  cases 
above  stated,  except  the  first  three. 

Rights  or  shares  of  the  defendant  in  the  stock  of  any  corporation  or 
company,  with  the  interests  and  profits  thereon,  and  all  debts  due  the 
defendant,  and  all  other  property,  not  exempt  from  execution,  may  be 
attached ;  and  garnishees  may  be  summoned,  and  examined  on  oath ; 
and  the  defendant  may  also  be  required  to  attend  for  the  purpose  of 
giving  information  respecting  his  property,  and  may  be  examined  on 
oath.i 

CONNECTICUT. 

The  process  in  civil  actions  in  this  State  is  by  summons  or  attach- 
ment. 

Attachment  may  be  granted  against  the  estate  of  the  defendant 
both  real  and  personal,  and,  for  want  thereof,  against  his  body,  in 
actions  at  law,  when  not  exempt  from  imprisonment  on  the  execution 
in  the  suit. 

If  the  plaintiff  be  not  an  inhabitant  of  this  State,  or  if  it  do  not 
appear  to  the  authority  signing  the  process  that  he  is  able  to  pay  the 
costs  of  the  action  should  judgment  be  rendered  against  him,  sufficient 
bond  must  be  given  before  such  process  is  issued,  conditioned  to  pros- 
ecute his  action  to  effect,  and  answer  all  damages,  if  he  make  not  his 
plea  good. 

Attachments  hold  until  the  suit  is  discharged  or  the  execution  is 
levied,  provided  the  execution  is  levied  within  sixty  days  after  final 
judgment  when  personal  property  is  attached,  and  within  four  months 
when  real  estate  is  concerned. 

Whenever  the  goods  or  effects  of  a  debtor  are  concealed  in  the 
hands  of  his  attorney,  agent,  factor,  or  trustee,  so  that  they  cannot  be 
found  to  be  attached,  or  where  debts  are  due  from  any  person  to  a 
debtor,  any  creditor  may  bring  his  action  against  such  debtor,  and 
insert  in  his  writ  a  direction  to  the  officer  to  leave  a  true  and  attested 
copy  thereof,  at  least  fourteen  days  before  the  session  of  the  court  to 
which  it  is  returnable,  with  such  debtor's  attorney,  agent,  factor, 
trustee,  or  debtor,  or  at  the  place  of  liis  or  their  usual  abode,  and  it 

1  Colorado  Code  of  Civil  Procedure,  1877. 


652  APPENDIX. 

shall  be  the  duty  of  the  officer  serving  such  writ  to  leave  a  copy  there- 
of according  to  such  direction  ;  and,  from  the  time  of  leaving  such 
copy,  all  the  goods  and  effects  in  the  hands  of  such  attorney,  agent, 
ftctor,  or  trustee,  and  any  debt  due  from  such  debtor  to  the  defendant, 
shall  be  secured  in  his  hands,  to  pay  such  judgment  as  the  plaintiff 
shall  recover,  and  may  not  otherwise  be  disposed  of,  by  such  attorney, 
agent,  factor,  trustee,  or  debtor. 

The  garnishee  so  summoned  may  be  reqxiired  to  appear  in  court,  and 
answer  on  oath  whether  he  has  any  goods  or  effects  of  the  defendant, 
or  is  indebted  to  him. 

Any  debt,  legacy,  or  distributive  share,  due,  or  which  may  become 
due,  to  any  person,  from  the  estate  of  any  deceased  person,  or  from  any 
insolvent  estate  assigned  for  the  benefit  of  creditors,  may  be  attached 
in  the  hands  of  the  executor,  administrator,  or  trustee.^ 

DELAWARE. 

In  this  State  there  are  domestic  attachments  and  foreign  attach- 
ments. 

Domestic  Attachment.  A  writ  of  domestic  attachment  issues  against 
an  inhabitant  of  this  State  after  a  return  to  a  summons  or  capias  sued 
and  delivered  to  the  sheriff,  ten  days  before  the  return  thereof,  showing 
that  the  defendant  cannot  be  found,  and  proof,  satisflictory  to  the  coiu-t, 
of  the  cause  of  action ;  or  upon  affidavit  made  by  the  j^laintiff,  or  some 
other  credible  person,  that  the  defendant  is  justly  indebted  to  the 
plaintiff  in  a  sum  exceeding  fifty  dollars,  and  has  absconded  from  the 
place  of  his  usual  abode,  or  gone  out  of  the  State,  with  intent  to  de- 
fraud his  creditors  or  to  elude  process,  as  is  believed. 

The  writ  of  attachment  commands  the  officer  to  attach  the  defend- 
ant by  all  his  goods  and  chattels,  rights  and  credits,  lands  and  tene- 
ments, in  whose  hands  or  possession  soever  the  same  may  be  found  in 
his  bailiwick ;  and  to  summon  the  defendant's  garnishees  to  appear  in 
court  to  declare  what  goods,  chattels,  rights,  credits,  moneys,  or  effects 
they  have  in  their  hands. 

The  attachment  is  dissolved  by  the  defendant's  appearing  and 
putting  in  special  bail,  at  any  time  before  judgment. 

On  the  return  of  the  writ,  the  court  appoints  three  i^ersons  to  audit 
the  claims  of  the  defendant's  creditors,  and  to  adjust  and  ascertain  all 
their  demands,  including  that  of  the  attachment  plaintiff.  These 
auditors  give  public  notice  to  the  defendant's  creditors,  of  the  time  and 
place  of  their  meetings  ;  and  they  investigate  any  claims  presented,  in 
any  form  they  judge  best,  and  may  examine  any  creditor  upon  oath. 

On  the  receipt  of  the  proceeds  of  sale  of  the  property  attached,  the 
auditors  calculate  and  settle  the  proportions  and  dividends  due  the 

1  Revised  Statutes  of  Connecticut,  1875. 


APPENDIX.  653 

several  creditors,  allowing  to  the  creditor  attaching  and  prosecutino- 
the  same  to  judgment  a  double  share,  or  dividend,  if  such  shall  not 
exceed  his  debt. 

Creditors  failing  to  present  their  claims  to  the  auditors,  or  to  make 
I^roof  thereof,  are  debarred  from  receiving  any  share  or  dividend  in 
the  distribution  to  be  made  by  the  auditors ;  and,  before  any  creditor 
shall  receive  any  dividend,  he  must  enter  into  recognizance,  with 
surety,  to  secure  the  repayment  of  the  same,  if  the  debtor  shall,  within 
one  year  thereafter,  appear  in  the  court,  and  disprove  or  avoid  the  debt 
upon  which  the  dividend  is  paid. 

Foreifjn  Attachment.  A  writ  of  foreign  attachment  issues  against 
any  corporation,  aggregate  or  sole,  not  created  by  or  existing  under 
the  laws  of  this  State,  upon  affidavit  made  by  the  plaintiff,  or  any 
other  credible  person,  that  the  defendant  is  a  corporation  not  created 
by  or  existing  under  the  laws  of  this  State,  and  is  justly  indebted  to 
the  plaintiff  in  a  sum  of  money,  to  be  specified  in  the  affidavit,  and 
which  shall  exceed  fifty  dollars.  And  such  writ  also  issues  against  any 
person  not  an  inhabitant  of  this  State,  after  a  return  to  a  summons  or 
capias  issued  and  delivered  to  the  sheriff,  ten  days  before  the  return 
thei-eof,  showing  that  the  defendant  cannot  be  found,  and  proof,  satis- 
factory to  the  court,  of  the  cause  of  action ;  or  upon  affidavit  made  by 
the  plaintiff,  or  some  other  credible  person,  that  the  defendant  resides 
out  of  the  State,  and  is  justly  indebted  to  the  plaintiff  in  a  sum  exceed- 
ing fifty  dollars. 

The  writ  of  foreign  attachment  is  framed,  directed,  executed,  and 
returned,  and  the  like  proceedings  had,  as  in  the  case  of  a  domestic 
attachment,  except  as  to  the  appointment  of  auditors  and  distribution 
among  creditors  :  for  the  plaintiff  in  foreign  attachment  has  the  benefit 
of  his  own  discovery ;  and,  after  judgment,  may  proceed  by  order  of 
e,2i\e^  fieri  facias^  ccqnas  ad  satisfaciendum,  or  otherwise,  as  on  other 
judgments ;  but,  before  receiving  any  sum  under  such  judgment,  he 
must  enter  into  recognizance,  with  surety,  to  secure  the  repayment  of 
the  same,  as  above  stated,  in  the  case  of  a  domestic  attachment.^ 

FLORIDA. 

In  an  action  arising  on  contract  for  the  recovery  of  money  only,  or  in 
an  action  for  the  wrongful  conversion  of  personal  property,  the  plaintiff, 
at  the  time  of  issuing  the  summons,  or  at  any  time  afterwards,  may 
have  an  attachment  against  the  defendant's  property,  upon  making  affi- 
davit and  giving  an  undertaking. 

The  warrant  of  attachment  is  issued  by  the  clerk  of  the  court,  when- 
ever it  shall  appear  by  affidavit  that  a  cause  of  action  exists  against  the 

1  Revised  Statutes  of  Delaware  of  1852,  as  anieiuled  up  to  187-1. 


654  APPENDIX. 

(lefendMiit,  sjiocifying  the  nniouiit  of  the  daim  aud  the  grounds  thereof, 
and  that  the  defendant  — 

1.  Is  a  foreign  corporation;  or, 

2.  Is  not  a  resident  of  this  State  ;  or, 

3.  lias  departed  therefrom  with  intent  to  defraud  his  creditors,  or  to 
avoid  the  service  of  a  summons ;  or, 

4.  Keeps  liimself  concealed  tlierein,  with  the  like  intent ;  or, 

5.  Has  removed,  or  is  about  to  remove,  any  of  his  property  from  the 
State,  with  intent  to  defraud  his  creditors;  or, 

6.  Has  assigned,  disposed  olj  or  secreted,  or  is  about  to  assign,  dis- 
pose of,  or  secrete,  any  of  his  property,  with  like  intent. 

Before  issuing  the  warrant,  a  Avritten  undertaking  must  be  given  on 
the  part  of  the  plaintiff,  with  sufficient  sureties,  to  the  effect  that,  if  the 
defendant  recover  judgment,  or  the  attachment  be  set  aside  by  the 
order  of  the  court,  the  plaintiff  will  pay  all  costs  that  may  be  awarded 
to  the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of 
the  attachment,  not  exceeding  the  sum  specified  in  the  undertaking, 
which  shall  be  at  least  two  hundred  and  fifty  dollars. 

The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of 
any  association  or  corporation,  together  with  the  interest  and  profits 
thereon  and  all  other  property  of  the  defendant,  may  be  attached  and 
levied  upon. 

The  execution  of  the  attachment  upon  any  such  rights,  shares,  or  any 
debts  or  other  property  incapable  of  manual  delivery  to  the  sheriff, 
shall  be  by  leaving  a  certified  copy  of  the  warrant  of  attachment  with 
the  president,  or  other  head  of  the  association  or  corporation,  or  the 
secretary,  cashier,  or  managing  agent  thereof,  or  with  the  debtor  or 
individual  holding  such  property,  with  a  notice  showing  the  property 
levied  on. 

The  sheriff  may  proceed  to  collect  the  notes  and  other  evidences  of 
debt,  and  the  debts  that  may  have  been  attached ;  and  apply  the  pro- 
ceeds to  the  judgment  of  the  attachment  plaintiff. 

Persons  in  whose  hands  property  or  debts  are  attached  must  furnish 
the  sheriff  with  a  certificate  describing  the  same ;  and,  if  they  refuse 
to  do  so,  they  may  be  required  to  appear  before  the  court  or  judge,  and 
be  examined  on  oath  concerning  the  same ;  and  obedience  to  such  orders 
may  be  enforced  by  attachment.^ 

GEORGIA. 

Attachments  may  issue  upon  money  demands,  whether  arising  ex 
contractu  or  ex  delicto,  in  the  following  cases :  — 
1.  When  the  debtor  resides  out  of  the  State ;  or, 

1  Bush's  Digest  of  Florida  Statutes,  1872. 


APPENDIX.  655 

2.  Is  actually  removing  or  about  to  remove  without  the  limits  of  the 
county ;  or, 

3.  Absconds ;  or, 

4.  Conceals  himself;  or, 

5.  Resists  a  legal  arrest ;  or, 

6.  Is  causing  his  property  to  be  removed  beyond  the  limits  of  the 
State. 

Affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney  at  law, 
that  the  debtor  has  placed  himself  in  some  one  of  the  positions  enu- 
merated, and  also  of  the  amount  of  the  debt  claimed  to  be  due ;  and 
the  plaintiff  must  also  give  bond,  with  security,  in  an  amount  at  least 
double  the  debt  sworn  to,  conditioned  to  pay  the  defendant  all  dam- 
ages that  he  may  sustain,  and  also  all  costs  that  may  be  incurred  by 
him  in  consequence  of  suing  out  the  attachment,  in  the  event  the  plain- 
tiff shall  fail  to  recover  in  the  case. 

Affidavit  having  been  made  and  bond  given  in  any  case  specified 
above,  the  officer  micst  issue  the  writ ;  but  in  cases  next  to  be  men- 
tioned it  is  otherwise. 

"Whenever  a  debtor  has  sold  or  conveyed  or  concealed  his  property 
liable  for  the  payment  of  his  debts,  for  the  purpose  of  avoiding  the 
payment  of  the  same  ;  or  whenever  a  debtor  shall  threaten  or  prepare 
so  to  do,  —  his  creditor  may  petition  the  judge  of  the  Superior  Court  of 
the  circuit  where  the  debtor  resides,  if  qualified  to  act,  and,  if  not,  the 
judge  of  any  adjoining  circuit ;  fully  and  distinctly  stating  his  grounds 
of  complaint  against  the  debtor,  and  praying  for  an  attachment  against 
the  debtor's  property,  supporting  his  petition,  or  by  testimony  if  he 
can  control  it.  The  judge  may  then  grant  an  attachment ;  or  he  may, 
if  he  deem  it  more  proper  under  the  circumstances  of  the  case  as  pre- 
sented to  him,  before  granting  the  attachment,  appoint  a  day  on  which 
he  shall  hear  the  petitioner,  and  the  party  against  whom  the  attach- 
ment is  prayed  (providing  in  his  order  for  due  notice  to  said  party), 
as  to  the  propriety  of  granting  the  attachment.  And,  if  satisfied  upon 
such  hearing  that  the  attachment  should  not  issue,  he  shall  not  grant 
it ;  but,  if  satisfied  that  the  same  should  issue,  he  shall  grant  it. 

Attachments  may  be  levied  on  the  defendant's  property,  real  and 
personal ;  and  garnishees  may  be  summoned  and  charged,  and  shares  of 
stock  in  corporations  may  be  attached. 

When  the  debt  is  not  due,  the  debtor  is  subject  to  attachment  in 
the  same  manner  and  to  the  same  extent  as  in  cases  where  the  debt  is 
due  ;  except  that,  where  the  debt  does  not  become  due  before  final 
judgment,  execution  upon  the  judgment  shall  be  stayed  until  the  debt 
is  due. 

Attachment  may  issue  against  an  administrator  or  executor,  when 
he  shall  be  actually  removing  or  about  to  remove  the  property  of  the 
deceased  without  the  limits  of  the  county. 


6oQ  APPENDIX. 

A  surety  or  iiidorscr  upon  an  instrument  of  writing  may  take  out  an 
attachment  against  his  princii)al,  if  the  principal  sliall  become  subject 
to  attachment  by  jthicing  himself  in  some  one  of  the  positions  above 
enumerated ;  and  the  money  raised  by  the  attachment  shall  be  paid  to 
the  person  holding  such  instrument  of  writing,  unless  the  surety  or 
indorser  has  paid  the  debt,  when  the  money  or  so  much  as  will  repay 
him  shall  go  to  him.^ 

An  attachment  may  issue  in  behalf  of  a  creditor  against  a  debtor, 
where  the  debt  is  for  property  purchased  by  the  latter  from  the  former, 
and  not  paid  for,  and  where  the  debt  has  become  due,  and  the  property 
is  in  the  possession  of  the  debtor. 

To  obtain  an  attachment  in  such  case,  the  creditor,  his  agent,  or 
attorney  at  law,  must  make  affidavit,  before  some  person  authorized  by 
law  to  issue  attachments,  that  the  debtor  has  placed  himself  in  the 
position  mentioned  in  this  act,  and  also  stating  the  amount  claimed  to  be 
due,  and  also  describing  the  property  for  which  the  debt  was  created. 

Bond  must  be  given  as  in  other  cases  of  attachment. 

The  attachment  issued  under  this  act  can  be  levied  only  on  the  prop- 
erty described  in  the  affidavit} 

ILLINOIS. 

In  any  court  of  record  having  competent  jurisdiction,  a  creditor  may 
haA'e  an  attachment  against  the  property  of  his  debtor,  when  the  in- 
debtedness exceeds  twenty  dollars,  in  any  one  of  the  following  cases :  — 

1.  Where  the  debtor  is  not  a  resident  of  this  State;  or, 

2.  Conceals  himself,  or  stands  in  defiance  of  an  officer,  so  that  process 
cannot  be  sei'ved  upon  him  ;  or, 

3.  Has  departed  from  this  State  with  the  intention  of  having  his 
effects  removed  from  this  State ;  or, 

4.  Is  about  to  depart  from  this  State  with  the  intention  of  having 
his  effects  removed  from  this  State ;  or, 

5.  Is  about  to  remove  his  property  from  this  State,  to  the  injury  of 
such  creditor;  or, 

6.  Has,  within  two  years  preceding  the  filing  of  the  affidavit  required, 
fraudulently  conveyed  or  assigned  his  effects,  or  a  part  thereof,  so  as 
to  hinder  or  delay  his  creditors  ;  or, 

7.  Has,  within  two  years  prior  to  the  filing  of  such  affidavit,  fraud- 
ulently concealed  or  disposed  of  his  property,  so  as  to  hinder  or  delay 
his  creditors ;  or, 

8.  Is  about  fraudulently  to  conceal,  assign,  or  otherwise  dispose  of 
his  pi'operty  or  effects,  so  as  to  hinder  or  delay  his  creditors ;  or, 

9.  Where  the  debt  sued  for  was  fraudulently  contracted  on  the  part 
of  the  debtor :  Provided,  the  statements  of  the  debtor,  his  agent  or 

1  Irwin,  Lester,  &  Hill's  Code  of  Georgia,  1873. 


APPENDIX.  657 

attorney,  which  constitute  a  fraud,  shall  have  been  reduced  to  writing, 
and  his  signature  attached  thereto  by  himself,  agent,  or  attorney. 

To  obtain  an  attachment,  the  plaintiff,  his  agent  or  attorney,  must 
make  and  file  with  the  clerk  of  the  court  an  affidavit,  setting  foi'th  the 
nature  and  amount  of  the  indebtedness,  after  allowing  all  just  credits 
and  set-offs,  and  any  one  or  more  of  the  foregoing  causes,  and  also 
stating  the  place  of  residence  of  the  defendant,  if  known,  and,  if  not 
known,  that  upon  diligent  inquiry  the  affiant  has  not  been  able  to 
ascertain  the  same. 

Before  issuing  the  attachment,  the  clerk  shall  take  bond  and  sufficient 
security,  j^ayable  to  the  defendant,  in  double  the  sum  sworn  to  be  due, 
conditioned  for  satisfying  all  costs  which  may  be  awarded  to  the  de- 
fendant, or  to  any  others  interested  in  the  proceedings,  and  all  damages 
and  costs  which  shall  be  recovered  against  the  j^laintiff  for  wrongfully 
suing  out  the  attachment. 

Lands,  tenements,  goods,  chattels,  rights,  credits,  moneys,  and  effects 
of  the  debtor,  and  lands  and  tenements  in  and  to  which  the  debtor 
has  or  may  claim  any  equitable  interest  or  title,  may  be  attached. 

When  the  officer  is  unable  to  find  property  of  the  defendant  suffi- 
cient to  satisfy  the  attachment,  he  shall  summon  the  persons  mentioned, 
in  the  writ  as  garnishees,  and  all  other  persons  whom  the  plaintiff  shall 
designate  as  having  any  property,  effects,  choses  in  actio?i,  or  credits  in 
their  possession  or  power,  belonging  to  the  defendant,  or  who  are  in 
any  wise  indebted  to  the  defendant.^ 

INDIANA. 

The  plaintiff,  at  the  commencement  of  an  action,  or  at  any  time 
afterwards,  may  have  an  attachment  against  the  property  of  the  defend- 
ant, in  the  cases  and  in  the  manner  following :  — 

Where  the  action  is  for  the  recovery  of  money. 

1.  Where  the  defendant  is  a  foreign  corporation,  or  a  non-resident 
of  this  State  ;  or, 

2.  Is  secretly  leaving  or  has  left  the  State,  with  intent  to  defraud 
his  creditors ;  or, 

3.  So  conceals  himself  that  a  summons  cannot  be  served  ujion  him  ; 
or, 

4.  Is  removing  or  about  to  remove  his  property  subject  to  execution, 
or  a  material  part  thereof,  out  of  this  State,  not  leaving  enough  therein 
to  satisfy  the  plaintiff's  claim  ;  or, 

5.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property  subject 
to  execution,  or  suffered  or  permitted  it  to  be  sold,  with  the  fraudulent 
intent  to  cheat,  hinder,  or  delay  his  creditors ;  or, 

6.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property  sub- 
j  ect  to  execution,  with  such  intent. 

1  Revised  Statutes  of  Illinois,  1874. 
42 


658  APPENDIX. 

No  attachment,  except  for  the  causes  mentionefl  in  the  fourth,  fifth, 
and  sixth  clauses,  shall  issue  against  any  debtor  while  his  wife  and  fam- 
ily remain  settled  within  the  county  where  he  usually  resided  prior  to 
his  absence,  if  he  shall  not  continue  absent  from  the  State  more  than 
one  year  after  he  shall  have  absented  himself,  unless  an  attempt  be 
made  to  conceal  his  absence. 

If  the  wife  or  family  of  the  debtor  shall  refuse  or  are  unable  to  give 
an  account  of  the  cause  of  his  absence,  or  of  the  place  wliere  he  may 
be  found,  or  give  a  false  account  of  either,  such  refusal,  inability,  or 
false  account  shall  be  deemed  an  attempt  to  conceal  his  absence. 

The  plaintiif,  or  some  person  in  his  behalf,  must  make  an  affidavit 
showing,  — 

1.  The  nature  of  the  plaintiff's  claim  ; 

2.  That  it  is  just ; 

3.  The  amount  which  he  believes  the  plaintiff  ought  to  recover ; 

4.  That  there  exists  in  the  action  some  one  of  the  grounds  for  an 
attachment  above  enumerated. 

The  plaintiff,  or  some  one  in  his  behalf,  must  execute  a  written  un- 
dertaking, with  sufficient  surety,  to  be  approved  by  the  clerk,  payable 
to  the  defendant,  to  the  effect  that  the  plaintiff  will  duly  prosecute  his 
proceeding  in  attachment,  and  will  pay  all  damages  which  may  be  sus- 
tained by  the  defendant,  if  the  proceedings  of  the  plaintiff  shall  be 
wrongful  and  oppressive. 

Upon  the  filing  of  such  affidavit  and  written  undertaking,  in  the 
office  of  the  clerk,  he  issues  an  order  of  attachment  to  the  sheriff,  which 
binds  the  defendant's  property  in  the  county,  and  becomes  a  lien 
thereon,  from  the  time  of  its  delivery  to  the  sheriff,  iu  the  same  manner 
as  an  execution. 

Under  this  order,  property,  real  and  personal,  is  attached,  and  gar- 
nishees are  summoned.  If,  after  an  order  of  attachment  is  placed  in 
the  hands  of  a  sheriff,  any  property  of  the  defendant's  is  removed  from 
the  county,  the  sheriff  may  pursue  and  attach  it  in  any  county  within 
three  days  after  the  removal. 

Estate  descended  to  non-resident  heirs  or  devisees,  or  vested  in  non- 
resident executors  or  administrators,  shall  be  liable  to  an  attachment 
fur  debt  or  other  demands  against  the  decedent's  estate. 

If  when  an  order  of  attachment  issues,  or  at  any  time  before  or  after- 
wards, the  plaintiff,  or  other  person  in  his  behalf,  shall  file  with  the 
clerk  an  affidavit  that  he  has  good  reason  to  believe  that  any  named 
person  has  property  of  the  defendant  of  any  description  in  his  posses- 
sion, or  under  his  control,  which  the  sheriff  cannot  attach  by  virtue  of 
such  order ;  or  that  such  person  is  indebted  to  the  defendant,  or  has 
the  control  or  agency  of  any  property,  moneys,  credits,  or  effects;  or 
that  the  defendant  has  any  shares  or  interest  in  the  stock  of  any  asso- 
ciation or  corporation ;  the  clerk  shall  issue  a  summons  notifying  such 


APPENDIX.  659 

person,  corporation,  or  association  to  appear  and  answer  as  garuisliee 
in  the  action. 

Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  written 
undertaking,  as  required  of  the  attaching  creditor,  may,  at  any  time 
before  the  final  adjustment  of  the  suit,  become  a  party  to  the  action, 
file  his  complaint,  and  prove  his  claim  or  demand  against  the  defendant, 
and  may  have  any  person  summoned  as  garnishee  or  held  to  bail  who 
has  not  before  been  summoned  or  held  to  bail. 

The  money  realized  from  the  attachment  and  the  garnishees  shall, 
under  the  direction  of  the  court,  be  paid  to  the  several  creditors,  in 
proportion  to  the  amount  of  their  several  claims  as  adjusted.^ 

IOWA. 

In  a  civil  action,  the  plaintiff  may  cause  any  property  of  the  defend- 
ant which  is  not  exempt  from  execution  to  be  attached  at  the  com- 
mencement, or  during  the  progress,  of  the  proceedings. 

The  grounds  for  obtaining  ttie  attachment  are  embodied  in  the  peti- 
tion, setting  forth  the  cause  of  action,  which  must  be  sworn  to,  and 
must  state,  as  the  affiant  verily  believes,  — 

1.  That  the  defendant  is  a  foreign  corporation,  or  acting  as  such  ; 
or, 

2.  Is  a  non-resident  of  the  State  ;  or, 

3.  Is  about  to  remove  his  property  out  of  the  State,  without  leaving 
sufficient  remaining  for  the  payment  of  his  debts  ;  or, 

4.  Has  disposed  of  his  property,  in  whole  or  in  part,  with  intent  to 
defraud  his  creditors  ;  or, 

6.  Is  about  to  dispose  of  his  property  with  intent  to  defraud  his 
creditors ;  or, 

6.  Has  absconded,  so  that  the  ordinary  process  cannot  be  served 
upon  him  ;  or, 

7.  Is  about  to  remove  permanently  out  of  the  county,  and  has  prop- 
erty therein,  not  exempt  from  execution,  with  which  he  refuses  to  pay 
or  to  secure  the  debt  due  the  plaintiff;  or, 

8.  Is  about  to  remove  permanently  out  of  the  State,  and  refuses  to 
pay  or  secure  the  debt  due  the  plaintiff;  or, 

9.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the 
county,  with  intent  to  defraud  his  creditors ;  or, 

10.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money, 
for  the  pur()Ose  of  placing  it  beyond  the  reach  of  his  creditors  ;  or, 

11.  His  property  or  riglits  in  action  which  he  conceals;  or, 

12.  That  the  debt  is  due  for  property  obtained  under  false  j^re- 
tences. 

If  the  plaintiff's  demand  is  founded  on  contract,  the  petition  must 
state  that  something  is  due,  and  as  nearly  as  practicable  the  amount. 

1  Davis's  Statutes  of  Indiana,  1876. 


OGO  APPENDIX. 

If  the  demand  is  not  founded  on  contract,  the  petition  must  be  pre- 
sented to  some  Judge  of  tlie  supreme,  district,  or  circuit  court,  wlio  shall 
make  an  allowance  thereon  of  the  amount  in  value  of  the  property  that 
may  be  attached. 

Property  of  a  debtor  may  be  attached  previous  to  the  time  when 
the  debt  becomes  due,  when  nothing  but  time  is  wanting  to  fix  an 
absolute  indebtedness,  and  when  the  ])etition,  in  addition  to  that  fact, 
states  that  the  defendant  is  about  to  dispose  of  his  property  with  intent 
to  defraud  his  creditors ;  or  that  he  is  about  to  remove  from  the  State, 
and  refuses  to  make  any  arrangement  for  securing  the  payment  of  the 
debt  when  it  falls  due,  and  which  contemplated  removal  was  not  known 
to  the  plaintiff  at  the  time  the  debt  was  contracted;  or  that  the  defend- 
ant has  disposed  of  his  property,  in  whole  or  in  j^art,  with  intent  to 
defraud  his  creditors ;  or  that  the  debt  was  incurred  for  property  ob- 
tained under  false  pretences. 

Before  a  writ  can  be  issued,  the  plaintiffraust  file  with  the  clerk  a  bond, 
for  the  use  of  the  defendant,  with  sureties  to  be  ajiproved  by  the  clerk, 
in  a  penalty  at  least  double  the  value  of  the  property  sought  to  be 
attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars  if  in 
the  district  court,  nor  less  than  fifty  dollars  if  in  a  justice's  court,  con- 
ditioned that  the  plaintiff  will  pay  all  damages  which  the  defendant 
may  sustain  by  reason  of  the  wrongful  suing  out  of  the  attachment. 
In  an  action  on  such  bond,  the  plaintiflT  therein  may  recover,  if  he  shows 
that  the  attachment  was  wrongfully  sued  out,  and  that  there  was  no 
reasonable  cause  to  believe  the  ground  upon  which  the  same  was  issued 
to  be  true,  the  actual  damages  sustained  and  reasonable  attorney's 
fees  to  be  allowed  by  the  court ;  and,  if  it  be  shown  that  the  attach- 
ment was  sued  out  maliciously,  he  may  recover  exemplary  damages  ; 
nor  need  he  wait  until  the  principal  suit  is  determined  before  suing  on 
the  bond. 

Stock,  or  an  interest  owned  by  the  defendant  in  any  company,  and 
also  debts  due  him,  or  property  of  his  held  by  third  persons,  may  be 
attached. 

A  sheriff  or  constable  may  be  garnished  for  money  of  the  defendant 
in  his  hands.  So  may  a  judgment  debtor  of  the  defendant,  when  the 
judgment  has  not  been  previously  assigned;  and  also  an  executor,  for 
money  due  from  the  decedent  to  the  defendant. 

The  plaintiff  may,  in  writing,  direct  the  sheriff  to  take  the  answer 
of  the  garnishee,  and  append  the  same  to  his  return.  In  such  case,  the 
sheriflT  has  power  to  administer  an  oath  to  garnishees,  requiring  them 
to  make  true  answers  to  the  questions  to  be  propounded,  the  form  of 
which  is  prescribed,  and  which  requires  the  garnishee  to  state  whether 
he  is  indebted  to  the  defendant,  or  has  in  his  i^ossession  or  under  his 
control  any  property,  rights,  or  credits  of  the  defendant,  or  knows  of 
any  debts  owing  to  the  defendant,  whether  due  or  not,  or  any  property, 


APPENDIX.  661 

rif?hts,  or  credits  belonging  to  him,  and  in  the  possession  or  under  the 
control  of  others. 

If  the  garnishee  refuse  to  answer  fully  and  unequivocally  the  inter- 
rogatories, he  shall  be  required  to  appear  and  answer  on  the  first  day 
of  the  next  term  of  the  court,^ 

KANSAS. 

The  plaintifi"  in  a  civil  action  for  the  recovery  of  money  may,  at  or 
after  the  commencement  thereof,  have  an  attachment  against  tlie  prop- 
erty of  the  defendant,  upon  the  following  grounds  :  — 

1.  When  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of 
this  State ;  but  no  order  of  attachment  shall  be  issued  on  these  grounds, 
or  either  of  them,  for  any  claim  other  than  a  debt  or  demand  arising 
upon  contract,  judgment,  or  decree,  unless  the  cause  of  action  arose 
wholly  within  the  limits  of  this  State,  which  fact  must  be  established 
on  the  trial. 

2.  When  the  defendant  has  absconded,  with  the  intent  to  defraud 
his  creditors;  or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons;  or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the 
jurisdiction  of  the  court,  with  the  intent  to  defi-aud  his  creditors;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money, 
for  the  purpose  of  placing  it  beyond  the  reach  of  his  creditors ;  or, 

7.  Has  property,  or  rights  in  action,  which  he  conceals ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of, 
his  property,  or  part  thereof,  with  the  intent  to  defraud,  hinder,  or 
delay  his  creditors  ;  or, 

9.  Fraudulently  contracted  the  debt,  or  fraudulently  incurred  the 
liability  or  obligation,  for  which  suit  is  about  to  be  or  has  been 
brought ;   or, 

10.  Where  the  damages  for  which  the  action  is  brought  are  for 
injuries  arising  from  the  commission  of  some  felony  or  misdemeanor, 
or  the  seduction  of  any  female ;  or, 

11.  When  the  debtor  has  failed  to  pay  the  jmce  or  value  of  any 
article  or  thing  delivered,  which,  by  contract,  he  was  bound  to  pay 
upon  delivery. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  Avhen  there  is  filed  in  his  office  an  affidavit  and 
an  undertaking. 

The  affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney, 

and  show, — 

1  Iowa  Code,  1873. 


01)2  APPENDIX. 

1.  Tlio  nntuve  of  the  plaintiff's  claim; 
'J.   That  it  is  just; 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to 
recover;  and, 

4.  The  existence  of  some  one  of  the  above  grounds  for  an  attachment. 
The  undeitaking  must  be  executed  by  one  or  more  sufficient  sureties 

of  the  plaintiff"  to  be  approved  by  the  clerk,  in  a  sum  not  exceeding 
double  the  amount  of  the  plaintift^'s  claim,  to  the  effect  that  the  plain- 
tiff shall  pay  to  the  defendant  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  if  the  order  be  wrongfully  obtained  ;  but  no 
undertaking  is  required  where  the  defendant  is  a  non-resident  of  the 
State  or  a  foreign  corporation. 

Under  the  order  of  attachment,  the  officer  may  attach  lands,  tene- 
ments, goods,  chattels,  stocks,  rights,  credits,  moneys,  and  effects. 

Garnishees  may  be  summoned,  upon  the  plaintiff",  his  agent  or  attor- 
ney, making  oath,  in  writing,  that  he  has  good  reason  to  believe,  and 
does  believe,  that  any  person  or  corporation,  to  be  named,  has  property 
of  the  defendant  (describing  the  same)  in  his  possession,  or  is  indebted 
to  him  ;  and  the  garnishee  stands  liable,  from  the  time  of  service  of 
notice  u])on  him,  to  the  plaintiff,  for  all  property,  moneys,  and.  credits 
in  his  hands,  or  due  from  him  to  the  defendant. 

The  court  or  judge,  in  vacation,  may  appoint  a  receiver,  who  shall 
take  possession  of  all  notes,  due-bills,  books  of  account,  accounts,  and 
all  other  evidences  of  debt  that  have  been  taken  by  the  officer,  and 
proceed  to  settle  and  collect  the  same. 

Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his 
projierty,  Avith  the  fraudulent  intent  to  cheat  or  defraud  his  creditors, 
or  to  hinder  or  delay  them  in  the  collection  of  their  debts ;  or  is  about 
to  make  such  sale  or  conveyance  or  disposition  of  his  property,  with 
such  fraudulent  intent  ;  or  is  about  to  remove  his  property,  or  a 
material  part  thereof,  with  the  intent  or  to  the  effect  of  cheating  or 
defrauding  his  creditors,  or  of  hindering  or  delaying  them  in  the  collec- 
tion of  their  debts,  —  a  creditor  may  bring  an  action  on  his  claim  before 
it  is  due,  and  have  an  attachment  against  the  property  of  the  debtor. 

In  such  case  the  plaintiff,  his  agent  or  attorney,  must  make  oath,  in 
Avriting,  showing  the  nature  and  amount  of  the  plaintiff's  claim,  that 
it  is  just,  when  the  same  will  become  due,  and  the  existence  of  some 
one  of  the  grounds  of  attachment  just  mentioned  as  applicable  to  this 
particular  case ;  and  then  an  attachment  may  be  granted  by  the  court 
in  which  the  action  is  brought,  or  by  a  judge  thereof.^ 

KENTUCKY. 

The  plaintiff"  may,  at  or  after  the  commencement  of  an  action,  have 
an  attachment  against  the  property  of  the  defendant,  in  the  cases  and 

1  Dassler's  General  Statutes  of  Kansas,  1876. 


APPENDIX.  663 

upon  the  grounds  hereinafter  stated,  as  a  security  for  the  satisfaction 
of  such  judgment  as  may  be  recovered  :  — 

I.  In  an  action  for  the  recovery  of  money  where  the  action  is 
against,  — 

1.  A  defendant  who  is  a  foreign  corporation,  or  a  non-resident  of 
this  State ;  or, 

2.  Who  has  been  absent  therefrom  four  months ;  or, 

3.  Has  departed  from  this  State  with  intent  to  defraud  his  credit- 
ors ;  or, 

4.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons ;  or, 

5.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him ;  or, 

6.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  out 
of  this  State,  not  leaving  enough  therein  to  satisfy  the  plaintiti^'s 
claim,  or  the  claims   of  defendant's  creditors  ;  or 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or 
suffered  or  permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat, 
hinder,  or  delay  his  creditors  ;  or, 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property 
with  such  intent. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  de- 
fendant is  a  foreign  corporation,  or  a  non-resident  of  this  State,  for  any 
claim  other  than  a  debt  or  demand  arising  upon  contract,  exj^ress  or 
implied,  or  a  judgment  or  award. 

IT.  In  an  action  for  the  recovery  of  money  due  upon  a  contract, 
judgment,  or  award,  if  the  defendant  have  no  property  in  this  State 
subject  to  execution,  or  not  enough  to  satisfy  the  plaintiff's  demand, 
and  the  collection  of  the  demand  will  be  endangered  by  delay  in 
obtaining  judgment  or  a  return  of   no  property  found. 

III.  In  an  action  to  recover  the  possession  of  personal  property, 
which  has  been  ordered  to  be  delivered  to  the  plaintiff,  and  which 
property,  or  part  thereof,  has  been  disposed  of,  concealed,  or  removed, 
so  that  the  order  for  its  delivery  cannot  be  executed  by  the  sheriff. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  in  any  case,  mentioned  under  the  first  and  second 
heads,  upon  an  affidavit  of  the  plaintiff  being  filed,  showing, — 

1.  The  nature  of  the  plaintiff's  claim  ; 

2.  That  it  is  just ; 

3.  The  sum  which  the  affiant  believes  the  plaintiff  oiight  to  re- 
cover; and, 

4.  The  existence  in  the  action  of  some  one  of  the  grounds  for  an 
attachment  above  enumerated  under  the  first  and  second  heads;  and 
in  the  case  mentioned  under  the  third  head,  where  it  is  shown  by  such 
affidavit,  or  by  the  return  of  the  sheriff  upon  the  order  for  the  delivery 


664  APPENDIX. 

of  the  property  claimed,  and  the  facts  mentioned  under  that  head 
exist. 

Where  the  return  by  tlie  proper  officer  upon  a  summons  against  a 
defendant  states  that  he  has  left  tlie  county  to  avoid  the  service  of 
the  summons,  or  has  concealed  himself  therein  for  that  purpose,  it  is 
equivalent  to  the  statement  of  the  fict  in  an  affidavit. 

The  order  of  attachment  shall  not  be  issued  until  there  has  been 
executed  in  the  clerk's  office,  by  one  or  more  sufficient  sureties  of 
the  plaintiff,  a  bond  to  the  effect  that  the  plaintiff  shall  pay  to  the 
defendant  all  damages  which  he  may  sustain  by  reason  of  the  attach- 
ment, if  the  order  is  wrongfully  obtained,  not  exceeding  double  the 
amount  of  the  plaintiff's  claim. 

An  order  of  attachment  binds  the  defendant's  property  in  the  county 
which  might  be  seized  under  an  execution  against  him,  from  the  time 
of  the  delivery  of  the  order  to  the  sheriff,  in  the  game  manner  as  an 
execution  would  bind  it ;  and  the  lien  of  the  plaintiff  is  completed 
upon  any  property  or  demand  of  the  defendant,  by  executing  the  order 
upon  it  in  the  manner  directed  by  law. 

A  garnishee  may  be  summoned,  and  is  required  to  answer  on  oath. 
Failing  so  to  answer,  the  plaintiff  may  bring  suit  against  him,  and  in 
that  suit  may  take  an  attachment  against  him  on  any  of  the  grounds 
above  stated.^ 

LOUISIANA. 

The  process  of  attachment  in  this  State  belongs  to  the  class  of  pro- 
ceedings known  in  the  Code  of  Practice  as  Conservatory  Acts  which 
may  accompany  the  demand. 

An  attachment  in  the  hands  of  third  persons  is  a  mandate  which  a 
creditor  obtains  from  a  competent  judge,  or  a  clerk  of  a  court,  com- 
manding the  seizure  of  any  property,  credit,  or  right  belonging  to  his 
debtor,  in  whatever  hands  it  may  be  found,  to  satisfy  the  demand 
which  he  intends  to  bring  against  him. 

A  creditor  may  obtain  such  attachment  of  the  property  of  his  debtor, 
in  the  following  cases :  — 

1.  When  the  debtor  is  about  leaving  permanently  the  State,  with- 
out there  being  a  possibility,  in  the  ordinary  course  of  judicial  proceed- 
ings, of  obtaining  or  executing  judgment  against  him  previous  to  his 
departure,  or  when  the  debtor  has  already  left  the  State  permanently  ;  or, 

2.  Resides  out  of  the  State  ;  or, 

3.  Conceals  himself  to  avoid  being  cited  and  forced  to  answer  to  the 
suit  intended  to  be  brought  against  him. 

A  creditor  may,  in  the  like  manner,  obtain  a  mandate  of  seizure 
against  all  sj^ecies  of  property  belonging  to  his  debtor,  real  or  personal, 

1  Bullitt's  Kentucky  Code  of  Practice,  1876. 


APPENDIX.  665 

whether  it  consists  of  credits,  or  rights  of  action,  and  whether  it  be  in 
the  debtor's  possession,  or  in  that  of  third  persons,  by  whatever  title 
the  same  be  held,  either  as  deposit  or  placed  under  their  custody. 

The  property  of  a  debtor  may  be  attached  in  the  hands  of  third  per- 
sons by  his  creditor,  in  order  to  secure  the  payment  of  a  debt,  what- 
ever may  be  its  nature,  whether  the  amount  be  liquidated  or  not, 
provided  the  term  of  payment  have  arrived,  and  the  creditor,  his  agent 
or  attorney  in  fact,  who  prays  for  the  attachment,  state  expressly  and 
positively  the  amount  which  he  claims. 

Where  the  debt  or  obligation  is  not  yet  due,  any  judge  of  competent 
jurisdiction  may  order  a  writ  of  attachment  to  issue  whenever  he  shall 
be  satisfied  by  the  oath  of  the  creditor  or  his  agent  of  the  existence  of 
the  debt,  and  upon  the  creditor  or  his  agent  swearing  that  the  debtor 
is  about  to  remove  his  property  out  of  the  State  before  the  debt  be- 
comes due. 

A  creditor  wishing  to  have  the  property  of  his  debtor  attached, 
must  demand  it  in  a  petition  presented  to  a  competent  judge,  with  a 
declaration  made  under  oath  of  the  existence  of  the  debt  demanded, 
and  that  he  verily  believes  that  the  debtor  has  left  the  State  perma- 
nently, or  that  he  resides  out  of  the  State,  or  conceals  himself,  so  that 
citation  cannot  be  served  on  him.  In  the  absence  of  the  creditor,  the 
oath  may  be  made  by  the  agent  or  attorney  in  fact  of  the  creditor  to 
the  best  of  his  knowledge  and  belief. 

The  creditor,  his  agent  or  attorney  in  fact,  praying  such  attachment, 
must,  besides,  annex  to  his  petition  his  obligation  in  favor  of  the  de- 
fendant, for  a  sum  exceeding  by  one-half  that  which  he  claims,  with 
the  surety  of  one  good  and  solvent  person,  residing  within  the  jurisdic- 
tion of  the  court  to  which  the  petition  is  presented,  as  a  security  for  the 
payment  of  such  damages  as  the  defendant  may  recover  against  him  in 
case  it  should  be  decided  that  the  attachment  was  wrongfully  obtained. 

If  a  creditor  know  or  suspect  that  a  third  person  has  in  his  posses- 
sion property  belonging  to  his  debtor,  or  that  he  is  indebted  to  the 
debtor,  he  may  make  such  person  a  party  to  the  suit,  by  having  him 
cited  to  declare  on  oath  what  property  belonging  to  the  defendant  he 
has  in  his  possession,  or  in  what  sum  he  is  indebted  to  the  defendant, 
even  when  the  term  of  payment  has  not  yet  arrived.  The  person  thus 
made  a  party  to  the  suit  is  termed  the  garnishee ;  and  he  is  required 
to  answer  categorically  under  oath  interrogatories  propounded  to  hiui 
by  the  plaintiflf.^ 

MAINE. 

All  civil  actions,  except  scire  facias  and  other  special  writs,  shall  be 
commenced  by  original  writs;  which  may  be  framed  to  attach  the 

1  Euqua's  Louisiana  Code  of  Practice,  1867. 


G66  APPENDIX. 

goods  ami  estate  of  the  defendant,  and  for  want  thereof  to  take  tlie 
body,  or  as  an  original  summons  witli  or  without  an  order  to  attach 
goods  and  estate  ;  and  in  actions  against  cor)>orations,  and  in  other 
cases  where  goods  and  estate  are  attaclied,  and  the  defendant  is  not 
liable  to  arrest,  the  writ  and  summons  may  be  combined  in  one. 

All  goods  and  chattels  may  be  attached  and  held  as  security  to  sat- 
isfy the  ju<lgment  for  damages  and  costs  which  the  plaintiff  may 
recover,  e\'cej)t  such  as,  from  their  nature  and  situation,  have  been 
considered  as  exempted  from  attachment  according  to  the  principles 
of  the  common  law  as  adopted  and  practised  in  this  State.  Shares  or 
interests  of  a  defendant  in  any  incorporated  company,  and  the  fran- 
chises and  right  to  demand  and  take  toll,  and  all  other  property  of  a 
corporation,  may  be  attached. 

All  the  debtor's  estate,  interest,  or  share  in  real  estate,  whether  held 
in  tail,  reversion,  remainder,  joint  tenancy,  or  in  common,  for  life,  years, 
or  otherwise,  including  an  equity  of  redemption,  maybe  attached. 

All  personal  actions,  except  those  of  detinue,  replevin,  actions  on  the 
case  for  malicioiis  prosecution,  for  slander  by  writing  or  speaking,  or 
for  assault  and  battery,  may  be  commenced  by  trustee  process  [gar- 
nishment]. 

Service  of  the  writ  on  the  trustee  binds  all  goods,  effects,  or  credits 
of  the  defendant,  intrusted  or  deposited  in  his  possession,  to  respond 
to  the  final  judgment  in  the  action. 

Any  debt  or  legacy,  due  from  an  executor  or  administrator,  and  any 
goods,  effects,  and  credits  in  his  hands  as  such,  may  be  attached  by 
trustee  jjrocess.^ 

MARYLAND. 

Every  person,  and  every  body  corporate  that  has  the  right  to  become 
a  plaintiff  in  any  action  or  proceeding  before  any  judicial  tribunal  in 
this  State,  shall  have  the  right  to  become  a  plaintiff  in  an  attachment 
against  a  non-resident  of  this  State,  or  against  a  person  absconding. 

Every  person  who  does  not  reside  in  this  State,  and  every  person 
who  absconds,  and  any  corporation  not  chartered  by  this  State,  or  any 
corporation  chartered  by  this  State  but  not  having  the  president  or  a 
majority  of  the  directors  or  managers  thereof  residing  in  this  State, 
may  be  made  a  defendant  in  attachment. 

Every  person  who  shall  actually  run  away,  abscond,  or  fly  from  jus- 
tice, or  secretly  remove  himself  from  his  place  of  abode  with  intention 
to  evade  the  payment  of  his  just  debts,  or  to  injure  or  defraud  his 
creditors,  shall  be  considered  as  having  absconded. 

An  attachment  may  also  be  obtained   against  a  debtor,  — 

^  Revised  Statutes  of  Maine,  1871. 


APPENDIX.  667 

1.  When  he  is  about  to  abscond  from  the  State  ;  or, 

2.  Has  assigned,  disposed  of,  or  concealed,  or  is  about  to  assign, 
dispose  of,  or  conceal,  his  property,  or  some  portion  of  it,  with  intent  to 
defraud  his  creditors ;  or, 

3.  Fraudulently  contracted  the  debt  or  incurred  the  obligation 
respecting  which  the  action  is  brought ;  or, 

4.  Has  removed,  or  is  about  to  remove,  his  property,  or  some  por- 
tion thereof,  out  of  this  State,  with  intent  to  defraud  his  creditors. 

To  obtain  an  attachment  against  a  non-resident  or  an  absconding 
debtor,  an  affidavit  must  be  made  that  the  debtor  is  bona  fide  indebted 
to  the  plaintiff  in  a  stated  sum,  over  and  above  all  discounts ;  and  that 
the  affiant  knows,  or  is  credibly  informed  and  verily  believes,  that  the 
debtor  is  not  a  citizen  of  this  State,  and  that  he  doth  not  reside 
therein  ;  or  if  the  debtor  resides  in  this  State,  that  he  doth  know,  or  is 
credibly  informed  and  verily  believes,  that  the  debtor  has  absconded. 

To  obtain  an  attachment  in  any  of  the  other  cases  mentioned,  the 
plaintiff,  or  some  person  in  his  behalf,  shall  make  affidavit  before  the 
clerk  of  the  court  from  which  the  attachment  is  to  issue,  stating  that 
the  defendant  is  bona  fide  indebted  to  the  plaintiff  in  a  named  sum, 
over  and  above  all  discounts,  and  that  the  plaintiff  knows,  or  has 
good  reason  to  believe,  that  one  or  other  of  the  causes  of  attachment 
specified  exists;  and  at  the  same  time  the  plaintiff,  or  some  person  on 
his  behalf,  shall  deliver  to  the  clerk  a  bond  to  the  State  of  Mary- 
land, with  security  to  be  approved  by  the  clerk,  in  double  the  sum 
alleged  to  be  due  by  the  defendant,  conditioned  that  the  plaintiff  shall 
prosecute  his  suit  with  effect,  or,  in  case  of  failure  thereof,  shall  pay  and 
satisfy  the  defendant  all  such  costs  in  the  suit  and  all  such  damages  as 
shall  be  awarded  against  the  plaintiff,  in  any  suit  which  may  be  brought 
for  wrongfully  suing  out  the  attachment. 

Every  attachment  issued  without  a  bond  and  affidavit  taken  afore- 
said is  declared  illegal  and  void,  and  shall  be  dismissed. 

Any  kind  of  property  or  credits  belonging  to  the  defendant,  in  the 
plaintiff's  own  hands,  or  in  the  hands  of  any  one  else,  may  be  attached ; 
and  credits  may  be  attached  which  shall  not  then  be  due. 

A  plaintiff  having  a  judgment  or  decree  in  any  court  of  law  or 
equity  in  this  State,  may,  instead  of  other  execution,  issue  an  attach- 
ment against  the  lands,  tenements,  goods,  chattels,  and  credits  of  the 
defendant,  in  the  plaintiff's  own  hands,  or  in  the  hands  of  any  other 
person.-^ 

MASSACHUSETTS. 

Original  writs  may  be  framed,  either  to  attach  the  goods  or  estate  of 
the  defendant,  and,  for  want  thereof,  to  take  liis  body  ;  or  they  may  be 

*  Revised  Code  of  Maryland,  1878. 


668 


APPENDIX. 


an  original  snmmons,  with  or  witliout  an  order  to  attacli  tlie  goods  or 
estate. 

All  real  and  leasehold  estates,  goods,  and  chattels,  liable  to  be  taken 
on  execution  (except  such  goods  and  chattels  as,  from  their  nature  or 
situation,  have  been  considered  as  exempt  according  to  the  principles 
of  the  common  law  as  adopted  and  practised  in  this  State),  may  be 
attached  ui)on  the  original  writ,  in  any  action  in  which  debt  or  dam- 
ages are  recoverable.  Shares  of  stock  in  corporations  may  be  attached, 
as  may  pei'sonal  property  of  the  defendant  subject  to  a  mortgage, 
pledge,  or  lien,  of  which  the  defendant  has  the  right  of  redemption  ; 
provided  the  attaching  creditor  pays  or  tenders  to  the  mortgagee, 
pawnee,  or  holder  of  the  property,  the  amount  for  which  it  is  liable 
within  ten  days  after  the  same  is  demanded. 

All  personal  actions  may  be  commenced  by  trustee  process  [garnish- 
ment], except  actions  of  replevin,  actions  for  tort,  for  malicious  prose- 
cution, for  slander  either  by  writing  or  speaking,  and  for  assault  and 
battery ;  and  any  person  or  corporation  may  be  summoned  as  trustee 
[garnishee]  of  the  defendant. 

Debts,  legacies,  goods,  effects,  or  credits,  due  from,  or  in  the  hands 
of,  an  executor  or  administrator  as  such  may  be  attached  in  his 
hands.^ 

MICHIGAN. 

Any  creditor  may  proceed  by  attachment  against  his  debtor  in  the 
circuit  court  of  the  county  in  which  the  creditor  or  the  debtor  (or  in 
case  of  joint  debtors,  either  of  them)  shall  reside,  if  the  debtor  have 
property  subject  to  attachment  in  said  county ;  and  in  case  the  debtor 
has  no  property  in  said  county,  or  is  a  non-resident  of  this  State,  then 
in  the  circuit  court  of  any  county  where  the  property  of  the  debtor 
may  be  found. 

Before  any  writ  of  attachment  shall  be  executed,  the  plaintiff,  or 
some  person  in  his  behalf,  must  make  and  annex  thereto  an  affidavit, 
stating  that  the  defendant  is  indebted  to  the  plaintiff,  and  specifying 
the  amount  of  such  indebtedness  as  near  as  may  be,  over  and  above 
all  legal  set-offs,  and  that  the  same  is  due  upon  contract,  express  or 
implied,  or  upon  judgment,  and  containing  a  further  statement  that 
the  deponent  knows  or  has  good  reason  to  believe,  either, — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond,  from 
this  State,  or  that  he  is  concealed  therein,  to  the  injury  of  his  credit- 
ors; or, 

2.  Has  assigned,  disposed  of,  or  concealed,  or  is  about  to  assign, 


1  General  Statutes   of  Massachusetts,  1860;  and  Supplements  Vol.  1  (187^^),  and 
Vol.  2  (1877). 


APPENDIX.  669 

dispose  of,  or  conceal,  any  of  his  property,  with  intent  to  defi-aud  his 
creditors ;  or, 

3.  Has  removed  or  is  about  to  remove  any  of  his  property  out  of 
this  State,  with  intent  to  defraud  his  creditors ;  or, 

4.  Fraudulently  contracted  the  debt  or  incurred  the  obligation 
respecting  which  the  suit  is  brought ;  or, 

5.  Is  not  a  resident  of  this  State,  and  has  not  resided  therein  for  three 
months  immediately  preceding  the  time  of  making  the  affidavit ;  or, 

6.  Is  a  foreign  corporation. 

The  affidavit  shall  not  be  deemed  insufficient  by  reason  of  the  inter- 
vention of  a  day  between  the  date  of  the  Jtcrat  thereto  and  the  issuing 
of  the  writ ;  and  when  the  person  making  the  affidavit  resides  in  any 
other  county  in  this  State  than  that  in  which  the  writ  of  attachment 
is  to  issue,  one  day's  time  for  every  thirty  miles  of  travel,  by  the  usual 
post  route,  from  the  residence  of  such  person  to  the  place  from  which 
the  writ  shall  issue,  shall  be  allowed  between  the  date  of  such  Jurat 
and  the  issuing  of  the  writ. 

The  writ  is  executed  upon  real  property,  goods,  chattels,  moneys, 
and  effects  of  the  defendant ;  but  no  authority  exists  for  summoning 
garnishees  under  it. 

Pi'ovision  is  made  for  obtaining  attachments  in  pending  suits 
founded  on  contract,  exj^ress  or  implied,  at  any  time  before  judgment, 
upon  filing  affidavit,  as  above  set  forth. 

In  all  personal  actions  arising  upon  contract,  brought  in  a  circuit 
court,  or  in  a  district  court  of  the  Upper  Peninsula,  or  in  a  court  of 
municipal  jurisdiction,  whether  commenced  by  capias,  summons,  dec- 
laration, or  writ  of  attachment,  if  the  plaintiff,  his  agent  or  attorney, 
shall  file  with  the  clerk  of  the  court,  at  the  time  of  or  after  commence- 
ment of  suit,  an  affidavit  stating  that  he  has  good  reason  to  believe, 
and  does  believe,  that  any  person  (naming  him)  has  property,  money, 
goods,  chattels,  credits,  and  effects  in  his  hands,  or  under  his  control, 
belonging  to  the  defendant,  or  that  such  person  is  in  any  wise  indebted 
to  the  defendant,  whether  such  indebtedness  be  due  or  not ;  that  the 
defendant  is  justly  indebted  to  the  plaintiff  in  a  given  amount,  over 
and  above  all  legal  set-offs,  and  that  the  plaintiff  is  justly  apprehensive 
of  the  loss  of  the  same,  unless  a  writ  of  garnishment  issue  to  the 
person  named,  —  a  copy  of  the  writ  or  declaration  and  affidavit  shall  be 
attached  to  a  writ  of  garnishment,  to  be  issued  by  the  clerk,  and  per- 
sonally served  in  the  same  manner  as  a  writ  of  summons ;  and  from 
the  time  of  such  service  the  garnishee  is  held  liable  as  such.^ 

MINNESOTA. 

In  an  action  for  the  recovery  of  money  (except  for  libel,  slander,  se- 
duction, breach  of  promise  of  marriage,  false  imprisonment,  or  assault 

1  Dewey's  Compiled  Laws  of  Michigan,  1872. 


670  APPENDIX. 

and  battery),  the  plaintiff  at  the  time  of  issuing  the  summons,  or  at 
any  time  afterward,  may  have  tlie  jtroperty  of  the  defendant  attaclied, 
in  the  manner  liereinatter  stated,  as  security  for  the  satisfaction  of  such 
judgment  as  the  phiintitf  may  recover. 

The  writ  of  attachment  is  issued  wlienever  it  appears  by  affidavit  of 
the  phiintilf,  his  agent  or  attorney,  tliat  a  cause  of  action  exists  against 
the  defenthnit,  specifying  the  amount  of  the  chiini  and  the  ground 
thereof,  and  that  the  defendant  is  either  — 

1.  A  foi'eign  corporation  ;  or, 

2.  Is  not  a  resident  of  this  State  ;  or, 

3.  Has  departed  therefrom  with  the  intent  to  hinder  or  delay  his 
creditors,  or  to  avoid  the  service  of  a  summons;  or, 

4.  Keeps  himself  concealed  therein  with  like  intent;  or, 

5.  Has  assigned,  secreted,  or  disposed  of,  or  is  about  to  assign,  secrete, 
or  dispose  of,  his  property,  with  intent  to  delay  or  defraud  his  credit- 
ors; or, 

6.  That  the  debt  was  fraudulently  contracted. 

Before  issuing  the  writ,  the  plaintiff  must  give  a  bond,  with  sufficient 
sureties,  conditioned  that,  if  the  defendant  recover  judgment,  the 
plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defendant,  and 
all  damages  which  he  may  sustain  by  reason  of  the  attachment,  not 
exceeding  the  sum  specified  in  the  undertaking,  which  shall  be  at  least 
two  hundred  and  fifty  dollars. 

All  property,  real,  {jersonal,  and  mixed,  including  all  rights  and 
shares  in  the  stock  of  any  corporation,  all  money,  bills,  notes,  book 
accounts,  debts,  credits,  and  all  other  evidences  of  indebtedness  be- 
longing to  the  defendant,  are  subject  to  attachment. 

In  any  action  founded  upon  contract,  express  or  implied,  if  the  plain- 
tiff, his  agent  or  attorney,  at  the  time  of  filing  the  complaint  or  issuing 
the  summons  therein,  or  at  any  time  during  the  pendency  of  the  action, 
or  after  judgment  therein  against  the  defendant,  makes  and  files  with 
the  clerk  of  the  court  an  affidavit  stating  that  he  believes  that  any 
person  (naming  him)  has  property,  money,  or  effects  in  his  hands  or 
under  his  control  belonging  to  the  defendant  in  such  action,  or  that 
such  person  is  indebted  to  the  defendant,  —  a  summons  may  be  issued 
against  such  person  as  garnishee  ;  and  the  service  thereof  upon  the 
garnishee  shall  attach  and  bind  all  the  property,  money,  or  effects  in 
his  hands,  or  under  his  control,  belonging  to  the  defendant,  and  any 
and  all  indebtedness  owing  by  him  to  the  defendant,  at  the  date  of 
such  service. 

Any  debt  or  legacy  due  from  an  executor  or  administrator,  and  any 
other  jjroperty,  money,  or  effects  in  the  hands  of  an  executor  or 
administrator,  may  be  attached  by  this  process. 

Debts  may  be  attached  before  they  are  payable ;  and  bills  of  ex- 
change  and   promissory  notes,  whether  under   or   over   due,  drafts 


APPENDIX.  671 

bonds,  certificates  of  deposit,  bank-notes,  money,  contracts  for  the 
payment  of  money,  and  other  written  evidence  of  mdebtedness,  in  the 
hands  of  the  garnishee  at  the  time  of  the  service  of  the  summons, 
shall  be  deemed  "  eifects."  ^ 

MISSISSIPPI. 

The  remedy  by  attachment  applies  for  the  enforcement  of  all  liqui- 
dated or  ascertained  debts,  of  every  name  and  description,  whether  due 
by  bond,  note,  or  open  account,  or  otherwise.  It  extends  to  all  claims 
for  damages  for  the  breach  of  any  contract,  express  or  implied,  written 
or  unwritten,  and  to  all  demands  or  claims  founded  upon  any  of  the 
penal  laws  of  the  State. 

An  aftidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney,  of 
the  amount  of  his  debt  or  demand,  to  the  best  of  his  knowledge  and 
belief,  stating  how  the  same  is  due,  whether  by  note,  open  account, 
or  bond,  or  claimed  under  a  penal  law  of  the  State,  and  of  the  exist- 
ence of  one  or  more  of  the  following  particulars  (which  are  required 
not  to  be  stated  disjunctively,  but  conjunctively,  except  where  one 
of  the  distinct  grounds  for  attachment  contains  within  itself  two  dis- 
junctive matters)  : 

1.  That  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of 
this  State ;  or, 

2.  Has  removed,  or  is  about  to  remove,  himself  or  his  property  out 
of  this  State;  or, 

3.  So  absconds,  or  conceals  himself,  that  he  cannot  be  served  with  a 
summons  ;  or, 

4.  Has  property  or  rights  in  action,  which  he  conceals,  or  unjustly 
refuses  to  apply  to  the  payment  of  his  debts ;  or, 

5.  Has  assigned  or  disposed  of,  or  is  about  to  assign  or  dispose 
of,  his  property,  or  rights  in  action,  or  some  part  thereof,  with  in- 
tent to  defraud  his  creditors,  or  give  an  uufoir  preference  to  some  of 
them;  or, 

6.  Has  converted,  or  is  about  to  convert,  his  property  into  money, 
or  evidences  of  debt,  with  intent  to  place  it  beyond  the  reach  of  his 
creditors ;  or, 

7.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for 
which  suit  has  been  or  is  about  to  be  brought. 

In  addition  to  the  required  affidavit,  a  bond  must  be  executed  by 
the  plaintiff,  his  agent  or  attorney  in  fact,  with  surety,  in  double  the 
amount  of  the  principal  sum  alleged  in  the  affidavit  to  be  due,  payable 
to  the  defendant,  and  conditioned  that  the  plaintiff  shall  pay  and 
satisfy  the  defendant  all  such  damages  as  he  shall  sustain  by  reason  of 

1  Bissell's  Statutes  at  Large  of  Minnesota,  1873. 


672  APPENDIX. 

the  wrongful  suing  out  of  the  attachment,  and  sliall  pay  all  costs  wliicli 
may  be  awarded  against  tlie  plaintiff  in  the  suit. 

Tlie  attaelnaent  may  be  levied  on  lands,  tenements,  money,  goods, 
chattels,  books  of  account,  and  evidences  of  indebtedness,  belonging 
to  the  defendant,  and  on  the  stock,  share,  or  interest  which  the  defend- 
ant may  have  in  any  copartnership  or  incorjiorated  company;  and 
garnishees  may  be  summoned. 

An  attachment  may  issue  for  a  debt  not  due,  if  the  creditor  make 
affidavit  that  he  has  just  cause  to  suspect,  and  verily  believes,  that  his 
debtor  will  remove  himself  or  his  effects  out  of  this  State  before  the 
debt  will  become  due  and  payable,  with  intent  to  hinder,  delay,  or 
defraud  his  creditors,  or  that  he  has  removed  with  like  intent,  leaving 
property  in  this  State.^ 

MISSOURI. 

The  plaintiff  in  any  civil  action  may  have  an  attachment  against  the 
property  of  the  defendant,  or  that  of  any  one  or  more  of  several  defend- 
ants, in  any  of  the  following  cases  :  — 

1.  Where  the  defendant  is  not  a  resident  of  this  State;  or, 

2.  Is  a  corporation  whose  chief  office  or  place  of  business  is  out  of 
this  State ;  or, 

3.  Conceals  himself  so  that  the  ordinary  process  of  law  cannot  be 
served  upon  him  ;  or, 

4.  Has  absconded  or  absented  himself  from  his  usual  place  of  abode 
in  this  State,  so  that  the  ordinary  process  of  law  cannot  be  served 
upon  him  ;  oi', 

5.  Is  about  to  remove  his  property  or  effects  out  of  this  State,  with 
the  intent  to  defraud,  hinder,  or  delay  his  creditors ;  or, 

6.  Is  about  to  remove  out  of  this  State,  with  the  intent  to  change  his 
domicile  ;  or, 

7.  Has  fraudulently  conveyed  or  assigned  his  property  or  effects  so 
as  to  hinder  or  delay  his  creditors ;  or, 

8.  Has  fraudulently  concealed,  removed,  or  disposed  of  his  property 
or  effects  so  as  to  hinder  or  delay  his  creditors ;  or, 

9.  Is  about  fraudulently  to  convey  or  assign  his  property  or  effects 
so  as  to  hinder  or  delay  his  creditors ;  or, 

10.  Is  about  fraudulently  to  conceal,  remove,  or  dispose  of  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors ;  or, 

11.  Where  the  cause  of  action  accrued  out  of  this  State,  and  the 
defendant  has  absconded  or  secretly  removed  his  property  or  effects 
into  this  State ;  or, 

12.  Where  the  damages  for  which  the  action  is  brought  are  for 

1  Eevised  Code  of  Mississippi,  1871. 


APPENDIX.  673 

injuries  arising  from  the  commission  of  some  felony  or  misdemeanor 
or  for  the  seduction  of  any  female;  or, 

13.  Where  the  debtor  has  failed  to  pay  the  price  or  value  of  any 
article  or  thing  delivered,  which  by  contract  he  was  bound  to  pay  upon 
the  delivery;  or, 

14.  Where  the  debt  sued  for  was  fraudulently  contracted  on  the  part 
of  the  debtor. 

An  attachment  may  issue  on  a  demand  not  yet  due,  in  any  of  the 
foregoing  cases,  except  the  first,  second,  third,  and  fourth. 

In  order  to  obtain  an  attachment  an  affidavit  must  be  made  by  the 
plaintiff,  or  some  person  for  him,  which  shall  state  that  the  plaintiff 
has  a  just  demand  against  the  defendant,  and  the  amount  which  the 
affiant  believes  the  plaintiff  ought  to  recover,  after  allowing  all  just 
credits  and  set-offs,  and  that  he  has  good  reason  to  believe,  and  does 
believe,  in  the  existence  of  one  or  more  of  the  causes  of  attachment 
above  set  forth.  If  the  cause  be  alleged  in  the  language  of  the  statute 
as  above  set  forth,  it  is  sufficient. 

Before  the  attachment  can  issue,  the  plaintiff,  or  some  responsible 
person,  as  principal,  with  one  or  more  securities,  resident  householders 
of  the  county  in  which  the  action  is  brought,  must  execute  a  bond  in 
a  sum  at  least  double  the  amount  sworn  to,  payable  to  the  State  of 
Missouri,  conditioned  that  the  plaintiff  shall  prosecute  his  action  with- 
out delay,  and  with  effect;  refund  all  sums  of  money  that  may  be 
adjudged  to  be  refunded  to  the  defendant,  or  found  to  have  been 
received  by  the  plaintiff,  and  not  justly  to  him ;  and  pay  all  damages 
and  costs  that  may  accrue  to  any  defendant  or  garnishee,  by  reason  of 
the  attachment,  or  any  process  or  proceeding  in  the  suit,  or  by  reason 
of  any  judgment  or  process  thereon. 

This  bond  may  be  sued  on,  at  the  instance  and  to  the  use  of  the 
party  injured,  in  the  name  of  the  State. 

Under  an  attachment,  the  officer  is  authorized  to  seize  as  attachable 
property  the  defendant's  account-books,  accounts,  notes,  bills  of  ex- 
change, bonds,  certificates  of  deposit,  and  other  evidences  of  debt,  as 
well  as  his  other  property,  real,  personal,  and  mixed  ;  and  any  and  all 
judgment  debts  of  the  defendant,  as  well  where  the  judgment  exists 
in  the  court  issuing  the  writ,  as  where  it  exists  in  any  other  court 
within  the  jurisdiction  of  the  court  issuing  the  writ :  but  no  property 
declared  by  statute  to  be  exempt  from  execution  shall  be  attached, 
except  in  the  cases  of  a  non-resident  defendant,  or  of  a  defendant 
who  is  about  to  move  out  of  the  State  with  intent  to  change  his 
domicile. 

All  persons  shall  be  summoned  as  garnishees  who  are  named  as  such 
in  the  writ ;  and  such  others  as  the  officers  shall  find  in  the  possession 
of  goods,  money,  or  effects  of  the  defendant  not  actually  seized  by  the 

43 


674  APPENDIX. 

officer;  anrl  rlebtors  of  the  defendant;  and  such  persons  as  the  plain- 
titf  or  his  attorney  shall  dh-ect.^ 

NEBRASKA. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at  or 
after  the  commencement  thereof,  have  an  attachment  against  the  pi*op- 
erty  of  the  defendant,  upon  the  following  grounds  :  — 

1.  When  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of 
this  State ;  or, 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors  ;  or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons  ;  or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him ;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the 
jurisdiction  of  the  court,  with  the  intent  to  defraud  his  creditors ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money, 
for  the  purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or, 

7.  Has  property,  or  rights  of  action,  which  he  conceals ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  assign, 
remove,  or  dispose  of,  his  property,  or  a  part  thereof,  with  the  intent  to 
defraud  his  creditors  ;  or, 

9.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for 
which  suit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the 
defendant  is  a  foreign  corporation  or  a  non-resident  of  this  State,  for 
any  claim  other  than  a  debt  or  demand  ai'ising  upon  contract,  judg- 
ment, or  decree. 

An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought,  when  there  is  filed  in  his  office  an  affidavit 
of  the  plaintiff,  his  agent  or  attorney,  showing, — 

1.  The  nature  of  the  plaintiff's  claim; 

2.  That  it  is  just ;  , 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to 
recover ; 

4.  The  existence  of  some  one  of  the  grounds  for  an  attachment  above 
enumerated. 

When  the  ground  of  the  attachment  is  that  the  defendant  is  a 
foreign  corporation,  or  a  non-resident  of  this  State,  the  order  of 
attachment  may  be  issued  without  an  undertaking.  In  all  other  cases, 
the  order  of  attachment  shall  not  be  issued  by  the  clerk  until  there  has 
been  executed  in  his  office,  by  one  or  more  sufficient  sureties  of  the 
plaintiff,  to  be  approved  by  the  clerk,  an  undertaking  not  exceeding 

1  Wagner's  Missouri  Statutes,  1872. 


APPENDIX.  675 

double  the  amount  of  the  phiintiff's  claim,  to  the  effect  that  the  plain- 
tiff shall  pay  the  defen<lant  all  damages  which  he  may  sustain  by 
reason  of  the  attachment  if  the  order  be  wrongfully  obtained. 

The  order  of  attachment  requires  the  officer  to  attach  the  lands, 
tenements,  goods,  chattels,  stocks,  or  interest  in  stocks,  rights,  credits, 
moneys,  and  effects  of  the  defendant. 

When  the  plaintiff,  his  agent  or  attorney,  shall  make  oath,  in  writing, 
that  he  has  good  reason  to  believe,  and  does  believe,  that  any  person  or 
corporation,  to  be  named,  and  within  the  county  where  the  action  is 
brought,  has  property  of  the  defendant  (describing  the  same)  in  his 
possession,  if  the  officer  can-not  come  at  such  property,  he  shall  summon 
such  person  or  corporation  as  garnishee ;  and  the  garnishee  shall  stand 
liable  to  the  plaintiff  for  all  property,  moneys,  and  credits  in  his  hands, 
or  due  from  him  to  the  defendant  from  the  time  he  is  garnished.^ 

NEVADA. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterwards,  may  have  the  property  of  the  defendant  attached,  as  secu- 
rity for  tlie  satisfiction  of  any  judgment  that  may  be  recovered,  unless 
the  defendant  give  security  to  pay  such  judgment,  in  the  following 
cases : — 

I.  In  an  action  upon  a  contract  for  the  direct  payment  of  money, 
made,  or  by  the  terms  thereof,  payable  in  this  State,  which  is  not 
secured  by  mortgage,  lien,  or  pledge  upon  real  or  personal  property 
situated  or  being  in  this  State,  if  so  secured,  when  such  security  has 
been  rendered  nugatory  by  the  act  of  the  defendant. 

II.  In  an  action  upon  a  contract  against  a  defendant  not  residing  in 
this  State. 

The  clerk  of  the  court  issues  the  writ  of  attachment  upon  receiving 
an  affidavit  by  or  on  behalf  of  the  plaintiff,  showing, — 

1.  That  the  defendant  is  indebted  to  the  pla  ntiff,  specifying  the 
amount  of  such  indebtedness  over  and  above  all  legal  set-offs  or 
counter-claims,  upon  a  contract  for  the  direct  payment  of  money,  and 
that  such  contract  was  made,  or  is,  by  the  terras  thereof,  payable  in 
this  State,  and  that  the  payment  of  the  same  has  not  been  secured  by 
any  mortgage,  lien,  or  pledge,  upon  real  or  personal  property  situate  or 
being  in  this  State  ;  or,  if  so  secured,  that  said  security  has  been  ren- 
dered nugatory  by  the  act  of  the  defendant ;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the 
amount  of  such  indebtedness,  as  near  as  may  be,  over  and  above  all 
legal  set-offs  or  counter-claims,  and  that  the  defendant  is  a  non-resi- 
dent of  this  State ;  and, 

3.  That  the  sum  for  which  the  attachment  is  asked   is  an  actual 

1  Brown's  General  Statutes  of  Nebraska,  187o. 


676  APPENDIX. 

bona  fide^  existing  debt,  clue  and  owing  from  the  defendant  to  the 
phiintiff,  and  tliat  the  attachment  is  not  sought,  and  the  action  is  not 
prosecuted,  to  liinder,  dehiy,  or  defraud  any  creditor  of  the  defendant. 

Before  issuing  tlie  writ,  the  cleik  sliall  require  a  written  undertaking 
on  the  part  of  the  phiintiff,  in  a  sum  not  less  than  two  hundred  dollars, 
not  exceeding  the  amount  claimed  by  the  jdaintiff,  in  gold  coin  of  the 
United  States,  with  sufficient  sureties,  to  the  effect  that  if  the  defend- 
ant recover  judgment  the  plaintifl' will  pay,  in  gold  coin  of  the  United 
States,  all  costs  that  may  be  awarded  to  the  defendant,  and  all  damages 
Avhich  he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the 
sum  specified  in  the  undertaking. 

All  property  of  the  defendant,  together  with  the  interest  and  profits 
therein,  and  all  debts  due  the  defendant,  and  all  other  property  in  this 
State  of  the  defendant,  not  exempt  from  execution,  including  rights  or 
shares  of  stock  in  any  corporation  or  company,  are  attachable,  unless 
the  defendant  give  security  by  the  undertaking  of  at  least  two  sufficient 
sureties,  in  an  amount  sufficient  to  satisfy  the  plaintiff's  demand,  be- 
sides costs,  in  the  money  or  currency  of  the  contract. 

Upon  receiving  information  in  writing  from  the  plaintiff  or  his 
attorney,  that  any  person  has  in  his  possession,  or  under  his  control, 
any  credits  or  other  personal  property  belonging  to  the  defendant,  or 
is  OAving  any  debt  to  the  defendant,  such  person  shall  be  summoned  as 
garnishee.^ 

NEW   HAMPSHIRE. 

In  this  State  the  writ  of  attachment,  as  distinguished  from  that 
form  of  such  writ  known  as  "  foreign  attachment "  or  "  trustee  process," 
issues  as  a  matter  of  course,  upon  the  institution  of  any  personal  action. 
It  is  declared  in  the  law  to  be  an  original  process  in  the  courts,  and 
commands  the  officer  to  attach  the  goods  and  estate  of  the  defendant. 
Under  it,  all  property,  real  and  personal,  which  is  liable  to  be  taken  in 
execution ;  shares  of  stock  in  any  corporation ;  pews  and  seats  in  meet- 
ing-houses or  places  of  public  woi'ship  ;  and  the  franchise  of  any  coi'- 
poration  authorized  to  receive  tolls,  so  far  as  relates  to  the  rights  to 
receive  tolls,  with  all  the  privileges  and  immunities  belonging  thereto, — 
may  be  attached  ;  but  garnishees  are  not  summoned. 

Property  so  attached  is  holden  until  the  expiration  of  thirty  days 
from  the  time  of  rendering  judgment  in  the  action  in  favor  of  the 
plaintiff,  that  execution  may  issue  thereon. 

All  personal  actions  may  be  commenced  by  the  process  of  foreign 
attachment,  or  trustee  process,  except  actions  of  replevin  and  trespass 
to  tlie  person,  and  actions  for  defamation  and  malicious  prosecution. 

This  trustee  Avrit  is  an  attachment  and  summons,  and  is  served  u2:»on 

1  Bonnifieid  &  Healy's  Compiled  Laws  of  Nevada,  1873. 


APPENDIX.  677 

the  defendant  and  the  trustees  (or  garnishees)  in  the  same  manner  as 
writs  of  summons. 

The  plaintiff  may  insert  tlie  names  of  as  many  persons  as  trustees  as 
he  may  deem  necessary,  at  any  time  before  the  process  is  served  on  the 
defendant,  but  not  after. 

A  trustee  may  be  required  to  answer,  in  writing  and  under  oath, 
interrogatories  as  to  his  liabiUty  as  trustee  ;  and  every  person  sum- 
moned as  trustee,  and  having  in  his  possession  any  money,  goods, 
chattels,  rights,  or  credits  of  the  defendant,  at  the  time  of  the  service 
of  the  writ  on  him,  or  at  any  time  after  such  service  and  before  his  dis- 
closure, shall  be  adjudged  a  trustee  therefor.^ 

NEW  JERSEY. 

If  any  creditor  shall  make  oath  or  affirmation  before  any  judge  of 
any  of  the  courts  of  record  of  this  State,  or  justice  of  the  peace  of 
any  county  in  the  same,  that  he  verily  believes  that  his  debtor  absconds 
from  his  creditors,  and  is  not,  to  his  knowledge  or  belief,  resident  in  the 
State  at  the  time,  the  clerk  of  the  Supreme  Coui-t,  or  of  any  circuit 
court  or  court  of  common  pleas,  shall  issue  a  writ  of  attachment,  com- 
manding the  sheriff  to  attach  the  rights  and  credits,  moneys  and  effects, 
goods  and  chattels,  lands  and  tenements,  of  such  debtor,  wheresoever 
they  may  be  found. 

If  the  creditor  be  absent  or  reside  out  of  the  State,  the  oath  may  be 
made  by  his  agent  or  attorney. 

Attachment  may  also  be  maintained  against  non-resident  debtors, 
absent  or  absconding  females,  and  foreign  corporations. 

It  issues  against  the  heirs  and  devisees  of  a  deceased  debtor,  in  all 
cases  in  which  it  might  lawfully  have  been  issued  against  the  debtor  in 
his  lifetime. 

Legacies  and  distributive  shares  of  estates  in  the  hands  of  executors 
or  administrators  may  be  attached. 

The  personal  property  in  this  State  of  a  non-resident  is  not  liable  to 
attachment  in  favor  of  a  non-resident,  where  such  property  is  exempt 
from  attachment  by  the  law  of  the  State  of  which  the  debtor  and 
creditor  are  residents. 

The  writ  binds  the  rights  and  credits,  moneys  and  effects,  goods  and 
chattels,  of  the  defendant,  from  the  time  of  executing  the  same,  and  his 
lands  from  the  time  of  issuing  the  writ. 

The  officer  in  executing  the  writ  is  authorized  and  required  (having 
first  made  demand  and  being  refused)  to  break  open  any  house,  cham- 
ber, room,  shop,  door,  chest,  trunk,  or  other  place  or  thing,  where  he 
shall  be  informed,  or  have  reason  to  believe,  any  money,  goods,  books 

1  General  Statutes  of  New  Hampshire,  1867. 


678  APPENDIX. 

of  account,  bomls,  bills,  notes,  papers,  or  writings  of  the  defendant  may 
be  deposited,  secreted,  had,  or  found. 

On  the  return  of  the  writ,  the  clerk  gives  notice,  for  a  space  of  not 
less  than  two  and  not  more  than  three  months,  in  one  or  more  news- 
papers circulating  in  the  State,  of  the  attachment ;  and  the  plaintiff 
must  set  up  a  copy  of  such  notice  in  the  clerk's  office,  for  the  same  space 
of  time. 

Other  creditors  are  admitted,  upon  filing  affidavit  with  the  clerk  of 
the  amount  of  their  claims. 

On  the  return  of  the  writ,  the  court  appoints  a  fit  person  to  audit 
and  adjust  the  demands  of  the  plaintiff,  and  of  so  many  of  the  defend- 
ant's creditors  as  shall  have  applied  to  the  court,  or  to  the  auditor  be- 
fore he  shall  have  made  his  report  for  that  purpose.  Final  judgment 
may  be  entered  of  course,  in  term  time  or  vacation,  upon  the  re])ort  of 
the  auditor,  at  any  time  after  six  months  from  the  return  of  the  writ. 

The  auditor  may  issue  his  warrant  under  his  hand  and  seal,  com- 
manding the  sheriff  of  the  county,  or  any  constable,  to  bring  before 
liim,  at  a  certain  time  and  place  therein  specified,  the  wife  of  the  de- 
fendant, or  any  other  person,  and  examine  them,  by  word  of  mouth  or 
interrogatories  in  writing,  touching  all  matters  relating  to  the  trade, 
dealings,  moneys,  debts,  effects,  rights,  credits,  lands,  tenements,  prop- 
erty, and  estate  of  the  defendant,  and  his  secret  grants,  or  fraudulent 
transfer  or  conveyance  of  the  same  ;  and  he  may  also  issue  his  warrant 
commanding  the  sheriff  or  constable  (having  first  made  demand  and 
been  refused)  to  break  open  any  place  or  thing  where  he  shall  have 
reason  to  believe  any  moneys,  goods,  chjittels,  books  of  account,  bonds, 
bills,  notes,  papers,  or  writings  of  the  defendant  may  be  deposited, 
secreted,  had,  or  found,  and  to  seize  and  inventory  the  same,  and  make 
report  thereof  to  the  court  at  the  next  term. 

The  auditor  may  also  sue  before  justices  of  the  peace  for  demands 
not  exceeding  one  hundred  dollars  due  the  defendant. 

He  is  required  to  sell  the  property  of  the  defendant,  real  and  per- 
sonal. After  which  he  must  give  public  notice  in  newspapers,  requiring 
a  meeting  of  the  plaintiff,  and  creditors  who  may  have  applied,  at 
a  certain  time  and  place.  At  which  meeting,  or  other  subsequent  one, 
the  auditor  shall  distribute  among  the  plaintiff  and  creditors  equally, 
and  in  a  ratable  proportion,  according  to  the  amount  of  their  respective 
debts,  as  ascertained  by  the  auditors'  report,  and  the  judgment  of  the 
court  thereon,  all  the  moneys  arising  from  the  sale  of  the  goods  and 
chattels,  lands  and  tenements,  first  deducting  legal  costs  and  charges; 
and,  if  the  moneys  be  not  sufficient  to  satisfy  the  debts,  they  shall  as- 
sign to  the  plaintiff  and  creditors  the  choses  in  action,  rights,  and 
credits  of  the  defendant,  in  jiroportion  to  their  respective  debts  ;  which 
assignment  shall  vest  the  property  and  interest  of  the  defendant  in  the 


APPENDIX.  679 

assignee,  so  as  he  may  sue  for  and  recover  the  same  in  his  own  name 
and  to  his  own  use. 

Any  one  may  be  summoned  as  garnishee,  notwithstanding  his 
denial  of  having  any  moneys,  goods,  &c.,  of  the  defendant,  if  the  plaintiif 
makes  oath  that  he  believes  he  has  moneys,  goods,  &c.,  and  is  in  fear 
of  the  garnishee's  absconding  before  judgment  and  execution  can  be 
had. 

When  judgment  is  entered  against  the  defendant  by  default  on  the  re- 
port of  the  auditor,  a  scire  facias  issues  against  the  garnishee,  to  appear 
at  the  next  term  after  entry  of  such  judgment,  and  show  cause  why 
the  plaintiff  should  not  have  execution  of  the  money  due  from  him  to 
the  defendant.^ 

NEW  YORK. 

A  warrant  of  attachment  against  the  property  of  one  or  more  de- 
fendants in  an  action  may  be  granted  upon  the  application  of  the 
plaintiff,  where  the  action  is  to  recover  a  sum  of  money  only,  as  dam- 
ages for  one  or  more  of  the  followincr  causes : 

I.  Breach  of  contract,  express  or  imj^lied,  other  than  a  contract  to 
marry. 

II.  Wrongful  conversion  of  personal  property. 

III.  Any  other  injury  to  personal  property,  in  consequence  of  neg- 
ligence, fraud,  or  other  wrongful  act. 

To  entitle  the  plaintiff  to  such  a  warrant,  he  must  show,  by  affidavit, 
to  the  satisfaction  of  the  judge  granting  the  same, — 

1.  That  one  of  the  above  causes  of  action  exists  against  the  defend- 
ant. If  the  action  is  to  recover  damages  for  breach  of  a  contract,  the 
affidavit  must  show  that  the  plaintiff  is  entitled  to  recover  a  sum  stated 
therein,  over  and  above  all  counter-claims  known  to  him. 

2.  That  the  defendant  is  either  a  foreign  corporation  or  not  a  resi- 
dent of  the  State ;  or,  if  he  is  a  natural  person  and  a  resident  of  this 
State,  that  he  has  departed  therefrom,  with  intent  to  defraud  his  cred- 
itors, or  to  avoid  the  service  of  a  summons,  or  keeps  himself  concealed 
therein  with  the  like  intent ;  or,  if  the  defendant  is  a  natural  person  or 
a  domestic  corporation,  that  he  or  it  has  removed  or  is  about  to 
remove  property  from  the  State,  with  intent  to  defraud  his  or  its 
creditors ;  or  has  assigned,  disposed  of,  or  secreted,  or  is  about  to 
assign,  dispose  of,  or  secrete,  property,  with  the  like  intent. 

The  judge,  before  granting  the  warrant,  must  require  a  written 
undertaking  on  the  part  of  the  plaintiff,  with  sufficient  sureties,  to  the 
effect  that,  if  the  defendant  recovers  judgment,  or  if  the  warrant  is 
vacated,  the  plaintiff  will  pay  all  costs  which  may  be  awarded  to  the 

1  Stewart  &  Vroom's  Revision  of  Laws  of  New  Jersey,  1877. 


680  APPENDIX. 

defeiulnnt,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  simi  specified  in  the  \nidertaking,  which 
mnst  be  at  least  two  hundred  and  fifty  dollars. 

It  is  not  a  defence  to  an  action  on  this  undertaking,  that  the  war- 
rant was  granted  improperly  for  want  of  jurisdiction,  or  for  any  other 
cause. 

The  sheriff  must  levy  the  warrant  upon  so  much  of  the  personal  and 
real  property  of  the  defendant,  within  his  county,  not  exempt  from 
levy  and  sale  under  execution,  as  will  satisfy  the  plaintiff's  demand, 
with  the  costs  and  expenses.  He  must  take  into  his  custody  all 
books  of  account,  vouchers,  and  other  papers  relating  to  the  personal 
property  attached,  and  all  evidences  of  the  defendant's  title  to  the  real 
property  attached,  which  he  must  safely  keep,  to  be  disjiosed  of  as 
prescribed  by  the  law. 

The  real  property,  which  may  be  levied  on,  includes  any  interest  in 
real  property,  either  vested  or  not  vested,  which  is  capable  of  being 
aliened  by  the  defendant. 

Under  a  warrant  of  attachment  against  a  foreign  corporation,  other 
than  a  corporation  created  by  or  under  the  laws  of  the  United  States, 
the  sheriff  may  levy  upon  the  sum  remaining  unpaid  upon  a  subscrip- 
tion to  the  capital  stock  of  the  corporation,  made  by  a  person  within 
the  county ;  or  upon  one  or  more  shares  of  stock  therein,  held  by  such 
a  person,  or  transferred  by  him,  for  the  purpose  of  avoiding  payment 
thereof. 

The  rights  or  shares  which  the  defendant  has  in  the  stock  of  an 
association  or  corporation,  together  with  the  interest  and  profits 
thereon,  may  be  levied  upon ;  and  the  sherifTs  certificate  of  the  sale 
thereof  entitles  the  purchaser  to  the  same  rights  and  privileges  with 
respect  thereto  which  the  defendant  had  when  they  were  so  attached. 

The  attachment  may  also  be  levied  upon  a  cause  of  action  arising 
upon  contract,  including  a  bond,  promissory  note,  or  other  instrument 
for  the  payment  of  money  only,  negotiable  or  otherwise,  whether  past 
due  or  yet  to  become  due,  executed  by  a  foreign  or  domestic  govern- 
ment, state,  county,  public  officer,  association,  municipal  or  other  cor- 
poration, or  by  a  private  person,  either  within  or  without  the  State, 
w^iich  belongs  to  the  defendant,  and  is  found  within  the  county.  The 
levy  of  the  attachment  thereupon  is  deemed  a  levy  upon,  and  a  seizure 
and  attachment  of,  the  debt  represented  thereby. 

Upon  the  application  of  a  sheriff,  holding  a  warrant  of  attachment, 
the  president  or  other  head  of  an  association  or  corporation,  or  the 
secretary,  cashier,  or  managing  agent  thereof,  or  a  debtor  of  the  de- 
fendant, or  a  person  holding  property,  including  a  bond,  promissory 
note,  or  other  instrument  for  the  payment  of  money,  belonging  to  the 
defendant,  must  furnish  to  the  sheriff  a  certificate,  under  his  hand, 
specifying  the  rights  or  number  of  shares  of  the  defendant  in  the  stock 


APPENDIX.  681 

of  the  association  or  corporation,  with  all  the  diviclencls  declared,  or 
incumbrances  thereon ;  or  the  amount,  nature,  and  description  of  the 
property  held  for  the  benefit  of  the  defendant,  or  of  the  defendant's 
interest  in  property  so  held,  or  of  the  debt  or  demand  owing  to  the 
defendant,  as  the  case  requires. 

If  a  person,  to  whom  application  is  so  made  by  the  sheriff,  refuses  to 
give  such  a  certificate ;  or  if  it  is  made  to  appear,  by  aflidavit,  to  the 
satisfaction  of  the  court,  or  a  judge  thereof,  or  the  county  judge  of  the 
county  to  which  the  warrant  is  issued,  that  there  is  reason  to  suspect 
that  a  certificate  given  by  him  is  untrue,  or  that  it  fails  fully  to  set 
forth  the  facts  required  to  be  shown  thereby,  —  the  court  or  judge  may 
make  an  order  directing  him  to  attend  at  a  specified  time,  and  at  a 
place  within  the  county  to  which  the  warrant  is  issued,  and  submit  to 
an  examination  under  oath  concerning  the  same. 

The  sheriff  must,  subject  to  the  direction  of  the  court  or  judge,  col- 
lect and  receive  all  debts,  effects,  and  things  in  action  attached  by 
him.  He  may  maintain  any  action  or  special  proceeding,  in  his  own 
name  or  in  the  name  of  the  defendant,  which  is  necessary  for  that  pur- 
pose, or  to  reduce  to  his  actual  possession  an  article  of  personal  prop- 
erty capable  of  manual  delivery,  but  of  which  he  has  been  unable  to 
obtain  possession.  And  he  may  discontinue  such  an  action  or  special 
proceeding  at  such  time  and  on  such  terms  as  the  court  or  judge 
directs. 

The  sheriff  must  keep  the  property  attached  by  him,  or  the  proceeds 
of  property  sold,  or  of  a  demand  collected  by  him,  to  answer  any  judg- 
ment that  may  be  obtained  against  the  defendant.  But  the  court, 
upon  the  application  of  either  party  to  the  action,  may  direct  the 
sheriff,  either  before  or  after  the  expiration  of  his  term  of  oftice,  to  pay 
into  court  the  proceeds  of  a  demand  collected,  or  property  sold  ;  or  to 
deposit  them  in  a  designated  bank  or  trust  company,  to  be  drawn  out 
only  upon  the  order  of  the  court. 

The  plaintiff,  by  leave  of  the  court  or  judge,  may  bring  or  maintain, 
in  the  name  of  himself  and  the  sheriff  jointly,  by  his  own  attorney  and 
at  his  own  expense,  any  action  which  might  be  brought  by  the  sheriff, 
as  aforesaid,  to  recover  property  attached,  or  the  value  thereof,  or  a 
demand  attached.  The  sheriff  must  receive  the  proceeds  of  such  an 
action ;  but  he  is  not  liable  for  the  costs  or  expenses  thereof.^ 

NORTH  CAROLINA. 

An  attachment  may  be  obtained  in  an  action  arising  on  contract,  for 
the  recovery  of  money  only,  or  in  an  action  for  the  wrongful  conver- 
sion of  personal  property. 

The  warrant  of  attachment  may  issue  at  the  time  of  issuing  the  sum- 

1  Bliss's  New  York  Code  of  Civil  Procedure,  1877. 


682  APPENDIX, 

nions,  or  at  any  time  afterward,  upon  affidavit  being  made  and  under- 
taking filed. 

The  affidavit  must  show  that  a  cause  of  action  exists  against  the 
defendant,  specifying  tlie  amount  of  the  chiim  and  the  grounds  thereof; 
and  that  the  defendant  is  either,  — 

1.  A  foreign  corporation  ;  or, 

2.  Not  a  resident  of  this  State  ;  or, 

3.  lias  departed  therefrom  with  intent  to  defraud  his  creditors  or  to 
avoid  tlie  service  of  a  summons ;  or, 

4.  Keeps  himself  concealed  therein  with  like  intent;  or, 

5.  Has  removed  or  is  about  to  remove  any  of  his  property  from  this 
State,  with  intent  to  defraud  his  creditors  ;  or, 

6.  Has  assigned,  disposed  of,  or  secreted,  or  is  about  to  assign,  dis- 
pose of,  or  secrete,  any  of  his  property,  with  the  like  intent. 

Before  issuing  the  warrant,  the  officer  must  require  a  written  under- 
taking on  the  part  of  the  plaintiff,  with  sufficient  surety,  to  the  effect 
that  if  the  defendant  recover  judgment,  or  the  attachment  be  set  aside 
by  the  order  of  the  court,  the  plaintiff  will  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the  un- 
dertaking, which  shall  be  at  least  two  hundred  and  fifty  dollars. 

The  warrant  may  be  levied  on  real  property  liable  to  execution,  on 
tangible  personal  property,  on  rights  or  shares  which  the  defendant 
may  have  in  the  stock  of  any  association  or  corporation,  and  upon 
debts  due  the  defendant.  Such  debts  the  officer  collects  and  receives 
into  his  possession  ;  to  which  end  he  may  take  such  legal  proceedings, 
either  in  his  own  name  or  in  that  of  the  defendant,  as  may  be  neces- 
sary.' 

OHIO. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at  or 
after  the  commencement  thereof,  have  an  attachment  against  the  prop- 
erty of  the  defendant,  upon  the  following  grounds  : 

1.  When  the  defendant  is  a  foreign  corporation,  or  a  non-resident 
of  this  State  ;  or, 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors ;  or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a 
summons ;  or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him ; 
or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the 
jurisdiction  of  the  court,  with  the  intent  to  defraud  his  creditors;  or, 

1  North  Carolina  Code  of  Civil  Procedure,  1868. 


APPENDIX.  683 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money, 
for  the  purpose  of  placing  it  beyond  the  reach  of  his  creditors  ;  or, 

7.  Has  property,  or  rights  in  action,  which  he  conceals ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of, 
his  property,  or  a  part  thereof,  Avith  the  intent  to  defraud  his  credit- 
ors; or, 

9.  Fraudulently  or  criminally  contracted  the  debt  or  incurred  the 
obligation  for  which  suit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the 
defendant  is  a  foreign  corporation,  or  a  non-resident  of  this  State,  for 
any  other  claim  than  a  debt  or  demand  arising  upon  contract,  judg- 
ment, or  decree. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  when  there  is  filed  in  his  office  an  affidavit  of  the 
plaintiff,  his  agent,  or  attorney,  showing, — 

1.  The  nature  of  the  plaintiff's  claim; 

2.  That  it  is  just ; 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  re- 
cover ;  and, 

4.  The  existence  of  some  one  of  the  grounds  for  an  attachment  above 
enumerated. 

When  the  ground  of  the  attachment  is,  that  the  defendant  is  a  foreign 
corporation,  or  a  non-resident  of  this  State,  the  order  of  attachment 
may  be  issued  without  an  undertaking.  In  all  other  cases,  it  shall  not 
be  issued  until  there  has  been  executed  in  the  clerk's  office,  by  one  or 
more  sufficient  sureties  of  the  plaintiff,  to  be  approved  by  the  clerk,  an 
undertaking,  not  exceeding  double  the  amount  of  the  plaintiff's  claim, 
to  the  effect  that  the  plaintiff  shall  pay  the  defendant  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  if  the  order  be 
wrongfully  obtained. 

Under  the  order  of  attachment  may  be  attached  lands,  tenements, 
goods,  chattels,  stocks,  or  interest  in  stocks,  rights,  credits,  moneys, 
and  effects  of  the  defendant,  not  exempt  by  law  from  the  payment  of 
jilaintiff's  claim. 

When  there  are  several  orders  of  attachment  against  the  same  de- 
fendant, they  shall  be  executed  in  the  order  in  which  they  were  received 
by  the  sheriff. 

A  receiver  may  be  appointed  by  the  court  or  any  judge  thereof  dur- 
ing vacation,  who  shall  take  possession  of  all  notes,  due-bills,  books  of 
account,  accounts,  and  all  other  evidences  of  debt,  that  have  been 
taken  by  the  officer,  as  the  property  of  the  defendant,  and  shall  pro- 
ceed to  settle  and  collect  the  same.  For  that  purpose,  he  may  com- 
mence and  maintain  actions  in  his  own  name  as  such  receiver;  but  in 
such  actions  no  right  of  defence  shall  be  impaired  or  affected. 


684  APPENDIX. 

The  receiver  is  to  give  notice  forthwith  of  his  a]ipointnient,  to  tlie 
persons  indebted  to  the  defendant ;  which  notice  shall  be  served  by- 
copy ;  and,  from  the  date  of  such  service,  the  debtors  shall  stand  liable 
to  the  plaintiff  in  attachment  for  the  amount  of  moneys  and  credits  in 
their  hands  or  due  from  them  to  the  defendant,  and  shall  account  there- 
for to  the  receiver. 

An  attachment  may  be  obtained  on  a  claim  before  it  is  due, — 

1.  Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his 
property,  with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors, 
or  to  hinder  or  delay  them  in  the  collection  of  their  debts ;  or, 

2.  Is  about  to  make  such  sale,  conveyance,  or  disposition  of  his  prop- 
erty, with  such  fraudulent  intent ;  or, 

3.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  with 
the  intent  or  to  the  effect  of  cheating  or  defrauding  his  creditors,  or 
of  hindering  or  delaying  them  in  the  collection  of  their  debts. 

Garnishees  may  be  summoned,  who  shall  aj)pear  and  answer,  under 
oath,  all  questions  put  to  them,  touching  the  property  of  every  descrip- 
tion and  credits  of  the  defendant  in  their  possession  or  under  their 
control.^ 

OREGON. 

In  an  action  for  the  recovery  of  money  or  damages,  the  plaintiff  at 
any  time  after  the  commencement  of  the  action,  and  before  judgment, 
may  have  the  property  of  the  defendant  attached,  as  a  security  for  the 
satisfaction  of  such  judgment  as  he  may  recover. 

A  writ  of  attachment  shall  be  issued  by  the  clerk  of  the  court  in 
which  the  action  is  pending,  whenever  the  jilaintiff,  or  any  one  on  his 
behalf,  shall  make  and  file  an  affidavit,  that  a  cause  of  action  exists 
against  the  defendant,  and  the  grounds  thereof,  and  that  the  defendant 
is  either  — 

1.  A  foreign  corporation ;  or, 

2.  Is  not  a  resident  of  this  State,  or  has  departed  therefrom  with 
intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the  service  of  a 
summons,  or  keeps  himself  concealed  therein  with  the  like  intent ;  or, 

3.  Has  removed  or  is  about  to  remove  any  of  his  property  from  this 
State,  with  intent  to  delay  or  defraud  his  creditors ;  or, 

4.  Has  assigned,  secreted,  or  disposed  of  any  of  his  property,  or  is 
about  to  assign,  secrete,  or  dispose  of  it,  with  intent  to  delay  or  defraud 
his  creditors  ;  or, 

5.  Has  been  guilty  of  a  fraud  in  contracting  the  debt  or  incurring 
the  obligation  for  which  the  action  is  brought. 

To  obtain  the  writ,  the  plaintiff  must  file  with  the  clerk  his  under- 

1  Swan  &  Critchfield's  Revised  Statutes  of  Ohio,  1860;  and  Swan  &  Sayler's  Sup- 
plement tliereto,  1868. 


APPENDIX.  685 

taking,  with  one  or  more  sureties,  in  a  sum  not  less  than  one  hundred 
dollars,  and  equal  to  the  amount  for  which  the  plaintiff' demands  judg- 
ment, and  to  the  effect  that  the  plaintiff  will  pay  all  costs  that  may  be 
adjudged  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  if  the  same  be  wrongful  or  without  sufficient 
cause,  not  exceeding  the  sum  specified  in  the  undertaking. 

All  property  of  the  defendant,  not  exempt  from  execution,  including 
his  rights  or  shares  in  the  stock  of  any  association  or  corporation, 
together  with  the  interests  and  profits  thereon,  may  be  attached. 

Personal  property,  not  capable  of  manual  delivery,  may  be  attached 
by  leaving  a  certified  copy  of  the  writ,  and  a  notice  specifying  the 
property  attached,  with  the  person  having  the  possession  of  the  same ; 
or  if  it  be  a  debt,  then  with  the  debtor ;  or  if  it  be  rights  or  shares  in 
the  stock  of  an  association  or  corporation,  or  interest  or  profits  thereon, 
then  with  such  person  or  officer  of  such  association  or  corporation  as 
the  law  authorizes  a  summons  to  be  served  upon.^ 

PENNSYLVANIA. 

In  this  State  there  is  foreign  attachment,  domestic  attachment,  and 
a  third  description  which  has  no  distinctive  designation. 

I.  The  writ  of  foreign  attachment  issues,  as  a  matter  of  right, 
against  a  foreign  corporation,  and  against  a  person  not  residing  within 
the  State,  and  not  being  within  the  county  where  the  writ  issues,  at 
the  time  of  its  issue.  Under  it  real  and  personal  estate  may  be  attached, 
and  garnishees  summoned,  who  are  required  to  answer  interrogatories 
propounded  by  the  plaintiff.  The  benefit  of  the  writ  of  foreign  attach- 
ment inures  to  the  attaching  creditor  alone,  and  not  to  all  his  credit- 
ors, as  in  the  case  of  domestic  attachment. 

II.  The  writ  of  domestic  attachment  issues  against  any  debtor, 
being  an  inhabitant  of  the  State,  if  such  debtor  shall  have  absconded 
from  the  place  of  his  usual  abode  within  the  same,  or  shall  have  remained 
absent  from  the  State,  or  shall  have  confined  himself  in  his  own  house, 
or  concealed  himself  elsewhere,  with  design,  in  either  case,  to  defraud 
his  creditors.  And  the  like  proceedings  may  be  had  if  a  debtor,  not 
bavins:  become  an  inhabitant  of  the  State,  shall  confine  or  conceal 
himself  within  the  county,  with  intent  to  avoid  the  service  of  a 
process,  and  to  defraud  his  creditors. 

This  writ  does  not  issue,  except  upon  oath  or  affirmation,  previously 
made  by  a  creditor  or  by  some  person  in  his  behalf,  of  the  truth  of 
his  debt,  and  of  the  facts  upon  which  the  attachment  shall  be  founded. 
It  commands  the  officer  to  attach  the  goods  and  chattels,  lands  and 
tenements,  of  the  defendant,  and  to  summon  garnishees. 

Upon  the  writ  being  executed,  the  court  appoints  thi-ee  trustees,  to 

1  Deady's  General  Laws  of  Oregon,  1866. 


686  APPENDIX. 

"whom  tlie  officer  delivers  tlie  personal  property  nttnehed ;  and  the 
trustees  thereiijion  publish  notice  in  a  newspajter,  requiring  all  ])ersons 
indebted  to  the  defendant,  or  holding  j)roperty  belonging  to  him,  to 
pay  and  deliver  the  same  to  them,  and  also  desiring  all  creditors  of  the 
defendant  to  present  their  respective  accounts  or  demands. 

All  the  estate  of  the  defendant  attached  or  afterwards  discovered 
by  the  trustees  vests  in  the  trustees,  and  they  may  sue  for  and  recover 
the  same  in  their  own  names.  They  are  authorized  to  summon  all 
persons  residing  in  the  county,  supposed  to  be  indebted  to  the  defend- 
ant, and  examine  them  on  oath,  as  they  shall  think  fit,  touching  the 
real  or  personal  estate  of  the  defendant,  and  such  other  things  as  may 
tend  to  disclose  their  estates,  or  their  secret  grants,  or  alienation  of 
their  eiFects.  If  such  persons  reside  in  another  county,  the  trustees  may 
send  interrogatories  m  writing,  and  examine  them  to  the  same  effect. 

The  trustees  may  issue  warrants  commanding  houses,  chambers, 
shops,  stores,  and  warehouses  of  the  defendant  to  be  broken  open,  and 
any  trunks  or  chests  of  the  defendant,  in  which  his  goods  or  effects, 
books  of  account,  or  papers  relating  to  his  estate,  shall  be,  or  shall  be 
reputed  to  be,  to  be  seized  for  the  benefit  of  his  creditors. 

They  are  empowered  to  recover  any  property  fraudulently  disposed 
of  by  the  defendant,  and  they  may  redeem  mortgaged  property. 

They  are  authorized  to  sell  the  estate,  real  and  personal,  of  the 
defendant  which  has  become  vested  in  them,  and  to  assign  any  or  all 
of  the  debts  due  or  to  become  due  to  him  ;  and  the  purchaser  or 
grantee  may  sue  for  and  recover  such  property  or  debts,  in  his  own 
name  and  to  his  own  use. 

The  trustees  then  fix  a  day,  and  proceed  to  hear  the  proofs  of  all 
creditors  of  the  defendant  of  their  respective  claims,  and  having  stated 
their  accounts,  and  ascertained  the  proportionate  sum  payable  to  each 
creditor,  they  file  their  report  of  the  same  in  the  office  of  the  pro- 
thonotary ;  and,  if  no  exceptions  to  the  report  be  filed  within  a  limited 
time,  they  proceed  to  distribute  the  money,  ratably  and  without  prefer- 
ence, among  all  the  creditors  who  have  proved  their  claims. 

The  death  of  the  defendant  after  the  issuing  of  an  attachment  does 
not  abate  or  otherwise  atfect  the  proceedings  thereon. 

No  second  or  other  attachment  can  be  issued  against  or  served  upon 
the  estate  or  effects  of  the  same  defendant,  except  those  issued  into 
another  county,  unless  the  first  attachment  be  not  executed,  or  be 
dissolved  by  the  court. 

III.  On  the  17th  of  March,  1869,  a  law  was  enacted  in  this  State 
extending  the  remedy  by  attachment. 

Under  this  law,  an  attachment  issues  by  the  prothonotary  of  a  court 
of  record  against  any  defendant,  upon  proof  by  the  affidavit  of  the 
plaintiff",  or    any   other  person  for  him,  that  the   defendant  is  justly 


APPENDIX.  687 

indebted  to  him  in  a  sum  exceeding  one  hundred  dollars,  and  setting 
forth  in  the  affidavit  the  nature  and  amount  of  the  indebtedness,  and 
that,  — 

1.  The  defendant  is  about  to  remove  his  property  out  of  the  juris- 
diction of  the  court  in  which  the  attachment  is  applied  for,  with  intent 
to  defraud  his  creditors  ;  or, 

2.  Has  property,  rights  in  action,  or  interest  in  any  public  or  corpo- 
rate stock,  money,  or  evidences  of  debt,  which  he  fraudulently  con- 
ceals; or, 

3.  Has  assigned,  disposed  of,  or  removed,  or  is  about  to  assign, 
dispose  of,  or  remove,  any  such  property,  money,  rights  in  action, 
interest  in  public  or  corporate  stock,  or  evidences  of  debt,  with  the 
intent  to  defraud  his  creditors ;  or, 

4.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for 
which  the  plaintiff's  claim  is  made. 

Before  the  writ  issues  under  this  act,  the  plaintiff,  or  some  one  on 
his  behalf,  must  execute  and  file  with  the  prothonotary  a  bond,  in  a 
penalty  of  at  least  double  the  amount  claimed,  with  good  and  sufficient 
surety,  to  be  approved  by  the  prothonotary ;  conditioned  that  if  the 
plaintiff  shall  fail  to  prosecute  his  action  with  effect,  and  recover  a 
judgment  against  the  defendant,  he  shall  pay  the  defendant  all  legal 
costs  and  damages  which  he  may  sustain  by  reason  of  the  attachment. 

If  two  or  more  attachments  are  issued  against  the  same  defendant, 
the  one  first  in  the  hands  of  the  proper  officer  for  service  has  the 
prior  lien,  and  the  others,  issued  in  pursuance  of  this  act,  in  the  order 
of  time  in  which  they  are  issued  to  the  officer.^ 

RHODE   ISLAND. 

An  original  writ  of  attachment,  commanding  the  attachment  of  the 
real  or  personal  estate  of  the  defendant,  including  his  personal  estate 
in  the  hands  or  possession  of  another  person  as  trustee  of  the  defend- 
ant, and  his  stock  or  shares  in  any  banking  association  or  other  incor- 
porated company,  may  be  issued  by  the  Supreme  Court,  court  of  common 
pleas,  or  by  any  justice  court,  whenever  the  plaintiff,  his  agent  or 
attorney,  shall  make  affidavit,  to  be  indorsed  thereon  or  annexed 
thereto,  that  the  plaintiff  has  a  just  claim  against  the  defendant  that 
is  due,  upon  whicli  the  plaintiff  expects  to  recover  in  such  action  a  sum 
sufficient  to  give  jurisdiction  to  the  court  in  which  the  writ  is  return- 
able ;  and,  also, 

1.  That  the  defendant  is  an  incorporated  company  established  out 
of  this  State  ;  or, 

2.  Resides  out  of  this  State;  or, 

1  Brightley's  Pardon's  Digest  of  Pennsylvania  Laws,  10th  Edition,  1873. 


688  APPENDIX. 

3.  lias  left  tlie  State,  and  is  not  expected  by  the  affiant  to  return 
within  the  same  in  season  to  be  served  with  process  returnable  to  tlie 
next  term  of  the  court ;  or, 

4.  Has  committed  fraud  in  contracting  the  debt  upon  which  the 
action  is  founded,  or  in  the  conceahnent  of  his  property,  or  in  the  dis- 
position thereof;  or, 

5.  That,  since  the  contracting  of  such  debt,  the  defendant  has  been 
the  owner  of  property,  or  in  tlie  receipt  of  an  income,  which  he  has 
refused  or  neglected  to  a])ply  towards  the  payment  thereof,  though 
requested  by  the  plaintiff  so  to  do. 

A  writ  of  attachment  may  be  issued  in  an  action  already  commenced 
by  summons,  in  the  like  cases,  and  on  the  like  affidavit,  as  in  the  case 
of  an  original  writ  of  attachment. 

The  writ  commands  the  attachment  of  the  goods  and  chattels  of  the 
defendant,  and  his  real  estate,  and  his  personal  estate  in  the  hands  of 
another  person  as  his  trustee,  and  his  stock  or  shares  in  any  banking 
association  or  incorporated  company. 

Under  the  writ,  garnishees  may  be  summoned,  and  must  answer 
under  oath.^ 

SOUTH   CAROLINA. 

In  an  action  arising  on  contract  for  the  recovery  of  money  only,  or 
in  an  action  for  the  wrongful  conversion  of  personal  property,  the 
plaintiff,  at  the  time  of  issuing  the  summons,  or  any  time  afterwards, 
may  have  the  property  of  the  defendant  attached,  as  security  for  the 
satisfaction  of  such  judgment  as  the  plaintiff  may  recover,  in  any  of 
the  following  cases : 

1.  Where  the  defendant  is  a  corporation  created  by  or  under  the 
laws  of  any  other  State,  government,  or  country  ;  or, 

2.  Is  not  a  resident  of  this  State  ;  or, 

3.  Has  absconded  or  concealed  himself;  or, 

4.  Is  about  to  remove  any  of  his  property  from  this  State  ;  or, 

5.  Has  assigned,  disposed  of,  or  secreted,  or  is  aboiit  to  assign,  dis- 
pose of,  or  secrete,  any  of  his  property,  with  intent  to  defraud 
creditors. 

To  obtain  an  attachment,  it  is  necessary  that  it  should  appear  by 
affidavit  that  a  cause  of  action  exists  against  the  defendant,  specifying 
the  amount  of  the  claim,  and  the  grounds  thereof,  and  that  one  or 
other  of  the  said  grounds  for  attachment  exists  ;  and  that  a  written 
undertaking  should  be  filed,  on  the  part  of  the  plaintiff,  with  sufficient 
surety,  to  the  effect  that  if  the  defendant  recover  judgment,  or  the 
attachment  be  set  aside  by  order  of  the  court,  the  plaintiff  will  pay  all 
costs  that  may  be  awarded  to  the  defendant,  and  all  damages  which 

i  General  Statutes  of  Rhode  Island,  1872. 


APPENDIX.  689 

he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the  sum 
specified  in  the  undertaking,  which  shall  be  at  least  two  hundred  and 
fifty  dollars,  except  in  case  of  a  warrant  issued  by  a  trial  justice,  when 
it  shall  be  at  least  twenty-five  dollars. 

All  real  and  personal  estate,  including  money  and  bank-notes,  except 
such  real  and  personal  estate  as  is  exempt  from  attachment,  levy,  or 
sale  by  the  Constitution ;  and  all  books  of  account,  vouchers,  and 
papers  relating  to  the  property,  debts,  credits,  and  effects  of  the  debtor, 
together  with  all  evidences  of  his  title  to  real  estate,  —  may  be  levied 
upon  under  attachment. 

An  attachment  is  a  lien  on  real  estate  attached  from  the  date  of 
lodgment. 

An  inventory  and  appraisal  of  the  property  attached  must,  within 
ten  days  after  seizure,  be  returned  to  the  officer  who  issued  the  attach- 
ment ;  and  the  sheriff  or  constable  shall,  under  the  direction  of  such 
officer,  collect,  receive,  and  take  into  his  possession  all  debts,  credits, 
and  effects  of  the  debtor,  and  commence  such  suits,  and  take  such  legal 
proceedhigs,  either  in  his  own  name  or  in  the  name  of  such  debtor, 
as  may  be  necessary  for  that  purpose,  and  prosecute  and  discontinue 
the  same  at  such  times  and  on  such  terms  as  the  court  may  direct. 

Rights  or  shares  in  the  stock  of  any  corporation  may  be  attached. 

The  execution  of  the  attachment  upon  any  such  rights  or  shares,  or 
upon  any  debts  or  other  property  incapable  of  manual  delivery,  shall 
be  made  by  leaving  a  certified  copy  of  the  warrant  of  attachment  with 
the  president  or  other  head  of  the  association  or  corporation,  or  the 
secretary,  cashier,  or  managing  agent  thereof,  or  with  the  debtor  or 
individual  holding  such  property,  with  a  notice  showing  the  property 
levied  on ;  and  such  person  shall  furnish  the  officer  with  a  certificate 
under  his  hand,  designating  the  number  of  rights  or  shares  of  the  de- 
fendant in  the  stock  of  such  association  or  corporation,  or  the  amount 
and  description  of  the  property  held  by  such  association,  corporation, 
or  individual,  for  the  benefit  of,  or  debt  owing  to,  the  defendant.  And 
this  may  be  compelled  by  attachment  of  the  body.^ 

TENNESSEE. 

Any  person  having  a  debt  or  demand  due  at  the  commencement  of 
an  action,  or  a  i)laintiff  after  action  for  any  cause  has  been  brought,  and 
either  before  or  after  judgment,  may  sue  out  an  attachment  at  law  or 
in  equity  against  the  i)roperty  of  a  debtor  or  defendant,  in  the  follow- 
ing cases : — 

1.  Where  the  debtor  or  defendant  resides  out  of  the  State ;  or, 

2.  Is  about  to  remove  or  has  removed  himself  or  property  from  the 
State ;  or, 

1  Revised  Statutes  of  South  Carolina,  1872. 
44 


690  APPENDIX. 

3.  Has  removed  or  is  removing  himself  out  of  the  county  pri- 
vately ;  or, 

4.  Conceals  himself  so  that  the  ordinary  jjrocess  of  law  cannot  be 
served  upon  him  ;  or, 

5.  Absconds,  or  is  absconding  or  concealing  himself  or  property  ;  or, 

6.  Has  fraudulently  disposed  of,  or  is  about  fraudulently  to  dispose 
of,  his  property ;  or, 

7.  Where  any  person  liable  for  any  debt  or  demand,  residing  out  of 
the  State,  dies,  leaving  property  in  the  State. 

When  the  debtor  and  creditor  are  both  non-residents  of  this  State, 
and  residents  of  the  same  State,  the  creditor  cannot  have  an  attach- 
ment against  the  property  of  the  debtor,  unless  he  swear  that  the  prop- 
erty of  the  debtor  has  been  fraudulently  removed  to  this  State  to 
evade  the  process  of  law  in  the  State  of  their  domicile  or  residence. 

An  attachment  may  be  sued  out  upon  debts  or  demands  not  due,  in 
any  of  the  cases  above  enumerated,  except  the  first. 

Any  accommodation  indorser  or  surety  may  sue  out  an  attachment 
against  the  property  of  his  principal,  as  a  security  for  his  liability, 
whether  the  debt  on  which  he  is  bound  be  due  or  not ;  but  the  attach- 
ment in  such  case  shall  be  discharged,  if  the  principal  give  bond  and 
security  to  be  approved  by  the  court  in  term  time,  or  its  clerk  in  vaca- 
tion, to  indemnify  the  plaintiff. 

In  all  actions  for  torts,  where  the  defendant  is  a  non-resident  of  this 
State,  or  fills  within  any  of  the  provisions  of  existing  laws  of  this 
State,  authorizing  attachments  to  issue,  the  plaintiff  may  commence  his 
suit  by  attachment,  in  the  same  way  and  manner  as  suits  are  com- 
menced upon  contracts ;  but  the  plaintiff,  his  agent  or  attorney,  must 
in  such  case  make  affidavit  before  the  judge  or  clerk  issuing  the  attach- 
ment, that  the  damages  sued  for  are  justly  due  the  plaintiff,  as  afiiant 
believes,  but  that  the  true  amount  of  such  damages  are  not  ascertained, 
and  that  one  or  more  of  the  aforesaid  causes  exists  for  the  issue  of  the 
attachment. 

To  obtain  an  attachment  in  other  cases,  the  plaintiff,  his  agent  or 
attorney,  must  make  oath  in  writing,  stating  the  nature  and  amount 
of  the  debt  or  demand,  and  that  it  is  a  just  claim ;  and,  also,  that  one 
or  more  of  the  above  enumerated  causes  for  attachment  exists;  and 
two  or  more  causes  may  be  stated  in  the  alternative. 

The  plaintiff,  his  agent  or  attorney,  must,  before  the  wi'it  issues, 
execute  a  bond  in  double  the  amount  claimed  to  be  due,  with  sufficient 
security,  payable  to  the  defendant,  and  conditioned  that  the  plaintiff 
will  prosecute  the  attachment  with  effect,  or,  in  case  of  failure,  pay  the 
defendant  all  costs  that  may  be  adjudged  against  him,  and  also  all 
such  damages  as  he  may  sustain  by  the  wrongful  suing  out  of  the 
attachment. 

Attachments  may  be  levied  upon  any  real  or  pei-sonal  property  of 


APPENDIX.  691 

either  a  legal  or  equitable  nature,  debts  or  choses  in  action,  whether 
due  or  not,  in  which  the  defendant  has  an  interest ;  and  garnishees 
may  be  summoned.^ 

TEXAS. 

Whenever  a  writ  of  summons  issues  from  any  court  of  this  State, 
in  any  civil  suit,  and  the  officer  returns  that  the  defendant  is  not  to  be 
found  in  his  county,  the  plaintiiF  may  sue  out  a  writ  of  attachment, 
returnable  in  the  same  manner  as  original  writs  ;  and  if  the  officer 
shall  return  any  property  by  him  attached,  and  the  defendant  shall  fail 
to  appear  and  plead  within  the  time  limited  by  the  law  regulating 
pleadings,  the  plaintiff  shall  be  entitled  to  judgment  as  in  ordinary 
suits ;  and  the  property  attached,  if  not  replevied,  or  released  by  spe- 
cial bail,  shall  remain  in  the  custody  of  the  officer  until  final  judgment. 

Original  attachments  are  issued,  upon  the  party  applying  for  the 
same,  his  agent  or  attorney,  making  an  affidavit  in  writing,  stating 
that  the  defendant  is  justly  indebted  to  the  plaintiff,  and  the  amount 
of  the  demand,  and  that  the  defendant,  — 

1.  Is  not  a  resident  of  the  State;  or,  "" 

2.  Is  about  to  remove  out  of  the  State ;  or, 

3.  Secretes  himself  so  that  the  ordinary  process  of  law  cannot  be 
served  on  him ;  or, 

4.  Is  about  to  remove  his  property  beyond  this  State ;  or, 

5.  Is  about  to  remove  his  property  beyond  the  county  in  which  the 
suit  is  to  be  or  has  been  commenced  ;  or, 

6.  Is  about  to  transfer  or  secrete,  or  has  transferred  or  secreted,  his 
property,  for  the  j^urpose  of  defrauding  his  creditors,  and  that  thereby 
the  plaintiff  will  probably  lose  his  debt. 

And  he  shall  also  swear  that  the  attachment  is  not  sued  out  for  the 
purpose  of  injuring  the  defendant. 

At  the  time  of  making  such  affidavit,  the  plaintiff,  his  agent  or  at- 
torney, shall  give  bond,  with  two  or  more  good  and  sufficient  sureties, 
payable  to  the  defendant,  in  at  least  double  the  amount  sworn  to  be 
due,  conditioned  that  the  plaintiff  will  prosecute  his  suit  to  effect,  and 
pay  such  damages  as  shall  be  adjudged  against  him  for  wrongfully  suing 
out  such  attachment. 

The  writ  of  attachment  goes  against  the  property  of  the  debtor, 
wherever  the  same  may  be  found. 

It  may  issue  in  all  cases,  although  the  debt  or  demand  be  not  due ; 
but  no  judgment  shall  be  rendered  until  the  demand  becomes  due. 

Where  an  attachment,  either  original  or  judicial,  is  issued,  the  plain- 
tiff may  have  at  the  same  time  a  writ  of  garnishment,  against  any  per- 
son supposed  to  be  indebted  to,  or  to  have  any  of  the  effects  of,  the 

1  Thompson  &  Steger's  Compilation  of  Laws  of  Tennessee,  1872. 


692  APPENDIX. 

defenclnnt.  Garnishees  summoned  under  this  writ  miist  answer  on 
oath  as  to  their  indebteihiess,  or  that  of  others,  to  the  defendant,  and 
as  to  the  effects  of  the  defendant  they  liave  in  their  possession,  and  hud 
at  the  time  of  the  garnishment.' 

VERMONT. 

The  ordinary  mode  of  process  in  civil  causes  is  by  writ  of  summons 
or  attacliment. 

Writs  of  attachment  may  issue  against  the  goods,  chattels,  or  estate 
of  the  defendant,  and  for  want  thereof  against  his  body. 

No  writ  shall  issue  unless  there  be  sufficient  security  given  to  the  de- 
fendant, by  way  of  recognizance,  by  some  person  other  than  the  plain- 
tiff, to  the  satisfaction  of  the  authority  signing  the  writ,  that  the 
plaintiff  shall  prosecute  his  writ  with  effect,  and  shall  answer  all  dam- 
ages, if  judgment  be  rendered  against  him. 

All  actions  foimded  on  any  contract,  express  or  implied,  made  and 
entered  into  since  the  first  day  of  January,  1839,  and  all  actions  founded 
on  any  contract  where  the  defendant  has  absconded  from,  or  is  resident 
out  of,  this  State,  or  is  concealed  within  this  State,  may  be  commenced 
by  trustee  process. 

The  writ,  in  such  case,  authorizes  the  attachment  of  the  goods, 
chattels,  or  estate  of  the  defendant  in  his  own  hands,  and  also  any 
goods,  effects,  or  credits  in  the  hands  of  the  trustees. 

Every  person  having  any  goods,  effects,  or  credits  of  the  defendant 
intrusted  or  deposited  in  his  hands  or  possession,  or  which  shall  come 
into  his  hands  or  possession  after  the  service  of  the  writ  and  before 
disclosure  is  made,  may  be  summoned  as  a  trustee ;  and  such  goods, 
effects,  and  credits  shall  thereby  be  attached,  and  held  to  respond  to 
the  final  judgment  in  the  suit.  Whatever  any  trustee  may  have  of  the 
defendant's  in  his  hands  or  possession,  which  he  holds  against  law  or 
equity,  may  be  attached  by  this  process. 

Any  debt  or  legacy  due  from  an  executor  or  administrator,  and  any 
other  goods,  effects,  or  credits  in  the  hands  of  an  executor  or  adminis- 
trator, as  such,  may  be  attached  in  his  hands  by  the  trustee  process. 

All  corporations  may  be  summoned  as  trustees. 

Any  money  or  other  thing  due  to  the  defendant  may  be  attached  by 
the  trustee  process  before  it  has  become  payable,  provided  it  be  due 
absolutely  and  without  any  contingency;  but  the  trustee  shall  not  be 
compelled  to  pay  or  deliver  it  before  the  time  appointed  therefor  by 
the  contract. 

Trustees  may  be  examined  on  oath,  touching  the  effects,  &c.,  of  the 
defendant  in  their  hands :  but  the  answer  of  a  trustee  under  oath  is 
not  conclusive  in  deciding  how  far  he  is  chargeable ;  but  either  party 

1  Pascliall's  Annotated  Digest  of  Laws  of  Texas,  2d  edition,  1870, 


APPENDIX. 


693 


may  allege  and  prove  any  facts  that  may  be  material  in  deciding  that 
question.^ 

VIRGINIA. 

When  any  suit  is  instituted  for  any  debt,  or  for  damages  for  breach 
of  any  contract,  on  affidavit  stating  the  amount  and  justice  of  the 
claim,  that  there  is  a  present  cause  of  action  therefor,  that  the  defend- 
ant is  not  a  resident  of  this  State,  and  that  the  affiant  believes  he  has 
estate  or  debts  due  him  within  the  county  or  corporation  in  which  the 
suit  is,  —  the  plaintiff  may  forthwith  sue  out  of  the  clerk's  office  an  at- 
tachment against  the  estate  of  the  non-resident  defendant,  for  the 
amount  so  stated. 

On  affidavit,  at  the  time  of  or  after  the  institution  of  any  suit,  that 
the  plaintiff's  claim  is  believed  to  be  just ;  and,  where  the  suit  is  to 
recover  specific  personal  property,  stating  the  nature,  and  according  to 
the  affiant's  belief  the  value,  of  such  property,  and  the  probable  amount 
of  damages  the  plaintiff  will  recover  for  the  detention  thereof;  or,  where 
it  is  to  recover  money  for  any  claim  or  damages  for  any  wrong,  stating 
a  certain  sum  which  (at  the  least)  the  affiant  believes  the  plaintiff  is 
entitled  to,  or  ought  to  recover ;  and  an  affidavit,  also,  that  the  affiant 
believes  that  the  defendant  is  removing  or  intends  to  remove  such 
specific  property,  or  his  own  estate,  or  the  proceeds  of  the  sale  of  his 
property,  or  a  material  part  of  such  estate  or  proceeds,  out  of  this  State, 
so  that  process  of  execution  on  a  judgment  in  said  suit,  when  it  is 
obtained,  will  be  unavailing,  —  in  any  such  case  the  clerk  shall  issue  an 
attachment.  If  the  suit  be  for  specific  property,  the  attachment  may 
be  against  the  specific  property  sued  for,  and  against  the  defendant's 
estate,  for  so  much  as  is  sufficient  to  satisfy  the  probable  damages  for 
its  detention ;  or,  at  the  option  of  the  plaintiff,  against  the  defendant's 
estate,  for  the  value  of  such  specific  property  and  the  damages  for  its 
detention.  If  the  suit  be  to  recover  money  for  a  claim,  or  damages  for  a 
wrong,  the  attachment  shall  be  against  the  defendant's  estate,  for  the 
amount  specified  in  the  affidavit,  as  that  which  the  affiant  believes  the 
plaintifl^  is  entitled  to  or  ought  to  recover. 

An  attachment  may  issue  before  a  claim  is  due  and  payable,  upon 
complaint  supported  by  affidavit  that  the  debtor  intends  to  remove,  or 
is  removing,  or  has  removed,  his  effects  out  of  this  State,  so  that  there 
will  probably  not  be  therein  sufficient  effects  of  the  debtor  to  satisfy 
the  claim  when  judgment  is  obtained  therefor,  should  the  ordinary  pro- 
cess of  the  law  be  used  to  obtain  such  judgment;  and  upon  further 
affidavit  of  the  amount  and  justice  of  the  claim,  and  at  what  time  the 
same  is  payable. 

Attachments   (except  where   sued   out   specially   against   specified 

1  General  Statutes  of  Vermont,  1870. 


694 


APPENDIX. 


property)  may  be  loviea  upon  any  estate,  real  or  pei-sonal,  of  tlie 
defendant;  and  garnishees  maybe  summoned,  who  are  required  to 
answer  on  oath. 

Equitable  claims  for  money  or  property  may  be  enforced  by  suit 
and  attachment  in  chancery,  upon  affidavit  being  made  as  in  actions  at 
law.^ 

WEST   VIRGINIA. 

When  any  action  at  law  or  suit  in  equity  is  about  to  be  or  is  insti- 
tuted for  the  recovery  of  any  claim  or  debt  arising  out  of  contract,  or 
to  recover  damages  for  any  wrong,  the  plaintiff,  at  the  commencement 
of  the  action  or  suit,  or  at  any  time  thereafter,  and  before  judgment, 
may  have  an  order  of  attachment  against  the  property  of  the  defend- 
ant, on  filing  with  the  clerk  of  the  court  his  own  affidavit,  or  that  of 
some  credible  person,  stating  the  nature  of  the  plaintiff's  claim  and 
the  amount  the  affiant  believes  the  plaintiff  is  justly  entitled  to  recover 
in  the  action ;  and  also  that  the  affiant  believes  that  some  one  or  more 
of  the  following  grounds  exist  for  such  attachment :  — 

1.  That  the  defendant,  or  one  of  the  defendants,  is  a  foreign  corpo- 
ration, or  is  not  a  resident  of  this  State ;  or, 

2.  Has  left  or  is  about  to  leave  the  State,  with  intent  to  defraud  his 
creditors  ;  or, 

8.  So  conceals  himself  that  a  summons  cannot  be  served  uj^on 
him ;   or, 

4.  Is  removing  or  is  about  to  remove  his  property,  or  a  part  thereof, 
out  of  this  State,  with  intent  to  defraud  his  creditors ;  or, 

5.  Is  converting  or  is  about  to  convert  his  property,  or  a  part  thereof, 
into  money  or  securities,  with  intent  to  defraud  his  creditors ;  or, 

6.  Has  assigned  or  disposed  of  his  property,  or  a  part  thereof,  or  is 
about  to  do  so,  with  intent  to  defraud  his  creditors  ;  or, 

7.  Has  property,  or  rights  of  action,  which  he  conceals ;  or, 

8.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for 
which  the  action  or  suit  is  brought. 

Unless  the  attachment  is  sued  out  upon  the  first  of  those  grounds, 
the  affiant  shall  also  state,  in  his  affidavit,  the  material  facts  relied  on 
by  him  to  show  the  existence  of  the  grounds  upon  which  his  applica- 
tion for  the  attachment  is  based. 

Every  attachment  may  be  levied  upon  any  estate,  real  or  personal, 
of  the  defendant ;  and  the  plaintiff  may,  by  an  indorsement  on  the 
order  of  attachment,  designate  any  person  as  being  indebted  to,  or 
having  in  his  possession,  the  effects  of  the  defendant ;  and  such  person 
may  be  summoned  as  garnishee. 

If  the  plaintiff  shall,  at  the  time  of  suing  out  the  attachment,  give 

1  Code  of  Virginia,  3d  edition,  1873. 


APPENDIX.  ,  695 

bond,  with  security  approved  by  the  clerk,  in  a  penalty  of  at  least 
double  the  amount  of  the  claim  sworn  to,  with  condition  to  pay  all 
costs  and  damages  which  may  be  awarded  against  him,  or  sustained  by 
any  person  by  reason  of  his  suing  out  the  attachment,  the  officer  shall 
take  possession  of  the  property  levied  on  by  viitue  of  the  attachment.^ 

WISCONSIN. 

Any  creditor  is  entitled  to  proceed  by  attachment. 

In  order  to  obtain  an  attachment,  the  plaintiff,  or  some  person  in  his 
behalf,  must  make  an  affidavit,  stating  that  the  defendant  is  indebted 
to  the  plaintiff,  and  specifying  the  amount  of  such  indebtedness,  as 
near  as  may  be,  over  and  above  all  legal  set-offs,  and  that  the  same  is 
due  upon  contract,  express  or  implied,  or  upon  judgment  or  decree,  and 
that  the  deponent  knows,  or  has  good  reason  to  believe,  either, — 

1.  That  the  defendant  has  absconded  or  is  about  to  abscond  from 
this  State,  or  that  he  is  concealed  therein  to  the  injury  of  his  credit- 
ors; or, 

2.  Has  assigned,  disposed  of,  or  concealed,  or  is  about  to  assign,  dis- 
pose of,  or  conceal,  any  of  his  property,  with  intent  to  defraud  his 
creditors ;  or, 

3.  Has  removed  or  is  about  to  remove  any  of  his  property  out  of 
this  State,  with  intent  to  defraud  his  creditors ;  or, 

4.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  re- 
specting which  the  suit  is  brought ;  or 

5.  Is  not  a  resident  of  this  State ;  or, 

6.  Is  a  foreign  coqioration  ;  or, 

7.  Has  fraudulently  conveyed  or  disposed  of  his  property,  or  a  part 
of  it,  with  intent  to  defraud  his  creditors. 

Before  the  writ  of  attachment  shall  be  executed,  a  written  under- 
taking on  the  part  of  the  plaintiff,  with  sufficient  surety,  shall  be 
delivered  to  the  officer  having  the  writ,  to  the  effect  that,  if  the  defend- 
ant recover  judgment,  the  plaintiff  shall  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  writ  of  attachment,  not  exceeding  the  sum  specified  in 
the  undertaking,  which  sum  shall  not  be  less  than  two  hundred  and 
fifty  dollars. 

The  writ  authorizes  the  attachment  of  all  property  of  the  defend- 
ant, including  rights  or  shares  of  any  association  or  corporation. 

If  the  plaintiff,  or  any  one  in  his  behalfj  make  affidavit  tliat  he  verily 
believes  that  any  person  (naming  him)  has  property,  credits,  or  effects 
in  his  hands  or  possession  belonging  to  the  defendant,  or  is  indel)ted 
to  the  defendant,  and  deliver  the  affidavit  to  the  officer  having  the 
writ, —  the  officer,  if  he  cannot  attach  such  proj^erty  and  get  possession 

1  Code  of  West  Virginia,  1868. 


696  APPENDIX. 

thereof,  shall  summon  such  person  as  garnishee  ;  who  is  required  to 
answer  under  oath  all  questions  put  to  him  touching  the  property, 
credits,  and  effects  of  the  defendant  in  his  possession,  or  within  his 
knowledge,  and  as  to  all  debts  due  or  to  become  due  from  him  to  the 
defendant. 

When  a  cause  of  action  exists  against  any  person  or  corporation, 
and  such  person  is  a  non-resident  of  the  State,  or  his  residence  is 
unknown,  and  he  has  property  within  the  State,  or  said  corporation  is 
a  foreign  corporation  and  has  i)roperty  within  the  State ;  and  the  cause 
of  action  is  one  sounding  in  tort,  and  growing  out  of  a  transaction 
relating  to  the  sale  of  real  or  personal  property,  made  by  defendant 
or  his  agent ;  or  when  the  cause  of  action  arises  out  of  any  other 
wrongful  act  sounding  in  tort,  committed  by  defendant  or  his  agent, 
and  the  court  has  jurisdiction  of  the  subject-matter  of  the  action,  and 
the  defendant,  after  due  diligence,  cannot  be  found  within  the  State  ; 
and  these  facts  are  made  to  appear  to  a  circuit  judge,  a  county  judge, 
or  a  court  commissioner,  by  affidavit,  and  such  judge  or  court  commis- 
sioner is  satisfied  that  a  cause  of  action  exists,  sounding  in  tort,  within 
the  provisions  of  this  act, —  he  may  order  that  the  plaintiff  proceed  by 
attachment,  against  the  property  of  the  defendant  found  within  the 
State,  in  the  circuit  court  of  the  proper  county,  fixing  by  said  order 
the  amount  of  property  in  value  to  be  attached ;  and  the  clerk  of  the 
circuit  court  of  the  county  where  the  action  is  commenced,  upon  the 
filing  of  such  affidavit  and  oi'der,  shall  issue  an  attachment  against 
the  property  of  the  defendant,  in  the  same  manner  and  form,  and 
subject  to  the  same  rules  and  like  proceedings,  as  in  other  cases  of 
attachment.^ 

TERRITORY  OF  ARIZONA. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterward,  may  have  the  property  of  the  defendant  attached  as  security 
for  the  satisfaction  of  any  judgment  that  may  be  recovered,  unless  the 
defendant  give  security  to  pay  such  judgment,  in  the  following  cases :  — 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  and  which  is  not  secured  by  a  mortgage  upon  real 
or  personal  property. 

2.  In  an  action  uj)on  a  contract,  express  or  implied,  against  a  defend- 
ant not  residing  in  this  Territory. 

The  clerk  of  the  court  shall  issue  the  writ  of  attachment,  upon 
receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff,  showing  that  the 
defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of  such 
indebtedness  over  and  above  all  legal  set-offs  or  counter-claims)  upon 
a  contract,  express  or  implied,  for  the  direct  payment  of  money,  and 

1  Taylor's  Revised  Statutes  of  Wisconsin,  1871. 


APPENDIX.  697 

that  such  contract  was  made  or  is  payable  in  the  Territory,  and  that 
the  payment  of  the  same  has  not  been  secured  by  any  mortgage  on 
real  or  personal  property,  and  showing  also  the  existence  of  any  of  the 
following  causes :  — 

1.  That  the  defendant  is  not  a  resident  of  this  Territory. 

2.  Is  about  to  remove  his  property  and  effects  beyond  the  limits  of 
the  Territory ;  or, 

3.  Has  absconded  from  his  usual  place  of  abode  in  this  Territory,  so 
that  the  ordinary  process  of  law  cannot  be  served  upon  him  ;  or, 

4.  Is  about  fraudulently  to  conceal  or  make  away  with  his  property 
or  effects  so  as  to  defraud,  hinder,  or  delay  his  creditors ;  or, 

5.  Has  fraudulently  concealed  or  made  away  with  his  property  or 
effects  so  as  to  defraud,  hinder,  or  delay  his  creditors ;  or, 

6.  Is  about  fraudulently  to  convey,  assign,  or  dispose  of  his  prop- 
erty so  as  to  defraud,  hinder,  or  delay  his  creditors  ;  or 

7.  Has  fraudulently  conveyed,  assigned,  or  disposed  of  his  property 
to  defraud,  hinder,  or  delay  his  creditors ;  or, 

8.  Is  a  non-i*esident  corporate  body  ;  or, 

9.  Is  about  to  remove  from  this  Territory  to  avoid  the  ordinary 
process  of  law. 

Before  issuing  the  writ,  the  clerk  shall  require  a  written  undertaking 
on  the  part  of  the  plaintiff,  with  sufficient  sureties,  to  the  effect  that  if 
the  defendant  recover  judgment  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages  which  he  may 
sustain  by  reason  of  the  attachment,  not  exceeding  the  sum  specified 
in  the  undertaking. 

All  property  of  the  defendant,  including  rights  and  shares  in  associa- 
tions or  corporations,  may  be  attached,  and  garnishees  summoned.^ 


TERRITORY    OF   DAKOTA. 

In  an  action  arising  on  contract  for  the  recovery  of  money  only,  or 
in  an  action  for  the  wrongful  conversion  of  personal  property,  the 
plaintiff,  at  the  time  of  issuing  the  summons  or  at  any  time  afterward, 
may  have  the  property  of  the  defendant  attached  as  a  security  for  the 
satisfaction  of  such  judgment  as  the  plaintiff  may  recover,  in  the  fol- 
lowing cases : — 

1.  "Where  the  defendant  is  a  corporation  created  by  or  under  the 
laws  of  any  other  Territory,  State,  government,  or  country ;  or, 

2.  Is  not  a  resident  of  this  Territory;  or, 

3.  Has  absconded  or  concealed  himself;  or, 

4.  Is  about  to  remove  any  of  his  proi)erty  from  this  Territory ;  or, 

1  Compiled  Laws  of  Arizona,  1871. 


698  APPENDIX. 

5.  Has  assigned,  disposed  of,  secreted,  or  is  about  to  assign,  dispose 
of,  or  secrete,  any  of  his  pro])erty,  with  intent  to  defraud  creditors. 

Tlie  clerk  of  the  court  issues  a  Avarrant  of  attachment,  uj)on  the 
phiintift'  giving  affidavit  and  undertaking. 

The  affidavit  must  state,  — 

1.  That  a  cause  of  action  exists  against  the  defendant,  specifying  the 
amount  of  the  cLaini  and  the  grounds  thereof ;  and 

2.  Tliat  the  defendant  is  eitlier  a  foreign  cor])oration,  or  not  a  re- 
sident of  this  Territory,  or  has  departed  therefrom  with  intent  to 
defraud  his  creditors  or  to  avoid  the  service  of  a  summons,  or  keeps 
himself  concealed  therein  with  the  like  intent ;  or, 

3.  Has  removed  or  is  about  to  remove  any  of  his  property  from 
the  Territory,  with  intent  to  defraud  his  creditors;  or, 

4.  Has  assigned,  disposed  of,  or  secreted,  or  is  about  to  assign,  dis- 
pose of,  or  secrete,  any  of  his  property,  with  the  like  intent. 

The  undertaking  must  be  on  the  part  of  the  plaintiff,  with  sufficient 
surety,  to  the  effect  that  if  the  defendant  recover  judgment,  or  the 
attachment  be  set  aside  by  order  of  the  court,  the  plaintiff  will  pay  all 
costs  that  may  be  awarded  to  the  defendant,  and  all  damages  which 
he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the  sura 
named  in  the  undertaking ;  which  must  be  at  least  the  amount  of  the 
claim  specified  in  the  affidavit,  and  in  no  case  less  than  two  hundred 
and  fifty  dollars. 

Under  the  warrant  of  attachment,  the  sheriff  must  attach  real  and 
personal  property,  including  debts,  credits,  money,  and  bank-notes; 
and  take  into  his  custody  all  books  of  accounts,  vouchers,  evidences  of 
indebtedness,  and  all  papers  relating  to  the  property,  debts,  credits, 
and  effects  of  the  defendant,  together  with  all  evidences  of  his  title  to 
real  propei-ty.  The  rights  or  shares  of  the  defendant  in  the  stock  of 
any  association  or  corporation,  together  with  the  interest  and  profits 
thereon,  may  also  be  attached ;  and  property  of  the  defendant  in  the 
hands  of  third  persons  may  be  reached  by  garnishment.^ 

TERRITORY   OF  IDAHO. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterward,  may  have  the  property  of  the  defendant  attached  as  security 
for  the  satisfaction  of  any  judgment  that  may  be  recovered,  unless  the  de- 
fendant give  security  to  pay  such  judgment,  in  the  following  cases  :  — 

I.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  which  contract  is  not  secured  by  a  mortgage,  lien, 
or  pledge  upon  real  or  personal  property  ;  or,  if  so  secured,  that  such 
security  has,  without  any  act  of  the  plaintiff,  or  the  j^erson  to  whom 
the  security  was  given,  become  valueless. 

1  Revised  Codes  of  Dakota,  1877. 


APPENDIX.  699 

II.  In  an  action  upon  a  contract,  express  or  impliecl,  against  a  defend- 
ant not  residing  in  this  Territory. 

The  clerk  of  the  court  issues  the  writ,  upon  affidavit  and  undertaking 
being  filed,  by  or  on  behalf  of  the  plaintiif. 

The  affidavit  must  show, — 

1.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the 
amount  of  such  indebtedness  over  and  above  all  legal  set-offs  or 
counter-claims,  upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  and  that  the  payment  of  the  same  has  not  been 
secured  by  any  mortgage,  lien,  or  pledge  upon  real  or  personal  prop- 
erty ;  or,  if  so  secured,  that  such  security  has,  without  any  act  of  the 
plaintiff,  or  the  person  to  whom  the  security  was  given,  become 
valueless. 

2.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the 
amount  of  such  indebtedness,  as  nearly  as  may  be,  over  and  above  all 
legal  set-offs  or  counter-claims,  and  that  the  defendant  is  a  non-resident 
of  the  Territory ;  and  that  the  attachment  is  not  sought,  and  the  action 
is  not  prosecuted,  to  hinder,  delay,  or  defraud  any  creditor  of  the 
defendant. 

The  undertaking  on  the  part  of  the  plaintiff  is  in  a  sura  not  less 
than  two  hundred  dollars,  nor  exceeding  the  amount  claimed  by  him, 
wuth  sufficient  sureties,  to  the  effect  that,  if  the  defendant  recover 
judgment,  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specified  in  the  undertaking,  if 
the  attachment  be  wrongfully  issued. 

Real  and  personal  property,  stocks  or  shares,  or  interest  in  stock  and 
shares,  of  any  corporation  or  company,  and  credits,  may  be  attached, 
and  garnishees  may  be  summoned.^ 

TERRITORY   OF  MONTANA. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterwards,  may  have  the  property  of  the  defendant  attached,  as  secu- 
rity for  the  satisfaction  of  any  judgment  that  may  be  recovered  in  the 
action,  unless  the  defendant  give  good  and  sufficient  security  to  secure 
the  payment  of  such  judgment. 

The  clerk  of  the  court  issues  the  writ  of  attachment,  upon  receiving 
affidavit  and  undertaking. 

The  affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney, 
showing  that  the  defendant  is  indebted  to  the  plaintiff  upon  a  contract, 
express  or  implied,  for  the  payment  of  money,  gold  dust,  or  other  prop- 
erty then  due,  which  is  not  secured  by  a  mortgage,  lien,  or  pledge  u})oa 

1  Revised  Laws  of  Idaho,  1875. 


700  APPENDIX. 

real  or  personal  pro]icrty ;  or,  if  so  secured,  that  the  security  has  be- 
come insufficient  by  the  act  of  the  defendant,  or  by  any  means  has 
become  nugatory. 

Actions  may  Ije  commenced,  and  writs  of  attachment  issued,  upon 
any  debt  for  the  payment  of  money  or  specific  property,  before  the 
same  shall  have  become  due,  when  it  shall  appear  by  the  affidavit,  in 
addition  to  what  is  above  recjuired,  either,  — 

1.  That  the  defendant  is  leaving  or  is  about  to  leave  this  Territory, 
taking  with  him  property,  money,  or  other  effects  which  might  be 
subjected  to  the  payment  of  the  debt,  for  the  purpose  of  defrauding  his 
creditors  ;  or, 

2.  Is  disposing  or  is  about  to  dispose  of  his  property,  subject  to 
execution,  for  the  purj^ose  of  defrauding  his  creditors. 

The  undertaking  must  be  on  the  part  of  the  plaintiff,  with  two  or 
more  sufficient  sureties,  to  be  approved  by  the  clerk,  in  a  sum  not  less 
than  double  the  amount  claimed  by  the  plaintiff,  to  the  effect  that  if 
the  defendant  recover  judgment,  or  if  the  court  shall  finally  decide 
that  the  j)laintiff  was  not  entitled  to  an  attachment,  the  plaintiff  will  pay 
all  costs  that  may  be  awarded  to  the  defendant,  and  all  damages  he 
may  sustain  by  the  wrongful  suing  out  of  the  attachment,  not  exceeding 
the  sum  specified  in  the  undertaking  ;  but,  if  the  amount  claimed  by 
the  plaintiff  equals  or  exceeds  the  sum  of  ten  thousand  dollars,  the 
undertaking  shall  only  be  required  in  the  sum  of  ten  thousand  dollars. 

Rights  or  shares  in  the  stock  of  any  corporation  or  company,  together 
with  the  interest  and  profits  thereon,  and  all  debts  due  the  defendant, 
and  all  other  property  of  the  defendant  not  exempt  from  execution, 
may  be  attached,  and  garnishees  may  be  summoned.^ 

TERRITORY  OF  NEW  MEXICO. 

Creditors  whose  demands  amount  to  fifty  dollars  or  njore  may  sue  their 
debtors  in  the  circuit  court,  by  attachment  in  the  following  cases :  — 

1.  When  the  debtor  is  not  a  resident  of,  nor  resides  in,  this  Terri- 
tory ;  or, 

2.  Has  concealed  himself,  or  absconded  or  absented  himself  from 
his  usual  place  of  abode  in  this  Territory,  so  that  the  ordinary  process 
of  law  cannot  be  passed  upon  him  ;  or, 

3.  Is  about  to  remove  his  property  or  effects  out  of  this  Territory ; 
or  has  fraudulently  concealed  or  disposed  of  his  property  or  effects  so 
as  to  defraud,  hinder,  or  delay  his  creditors ;  or, 

4.  Is  about  fraudulently  to  convey  or  assign,  conceal  or  dispose  of,  his 
property  or  effects,  so  as  to  hinder,  delay,  or  defraud  his  creditors  ;  or, 

5.  When  the  debt  was   contracted  out  of  this  Territory,  and  the 

1  Montana  Code  of  Civil  Procedure,  1877. 


APPENDIX.  701 

debtor  has  absconded,  or  secretly  removed  his  property  or  effects  into 
the  Territory,  with  the  intent  to  hinder,  delay,  or  defraud  his  creditors. 

In  order  to  obtain  an  attachment,  an  affidavit  must  be  made  by  the 
plaintiff,  or  some  person  for  him,  and  a  bond  executed. 

The  affidavit  must  state  that  the  defendant  is  justly  indebted  to 
the  plaintiff,  after  allowing  all  just  credits  and  offsets,  in  a  sum  to  be 
specified,  and  on  what  account;  and  that  the  affiant  has  good  reason  to 
believe,  and  does  believe,  the  existence  of  one  or  more  of  the  causes 
above  recited  as  entitling  the  plaintiff  to  sue  by  attachment. 

The  bond  must  be  executed  by  the  plaintiff  or  some  responsible  per- 
son as  principal,  and  two  or  more  securities,  residents  of  the  Territory, 
in  a  sum  at  least  double  the  amount  sworn  to,  payable  to  this  Territory  ; 
conditioned  that  the  plaintiff  shall  prosecute  his  action  without  delay 
and  with  effect,  and  refund  all  sums  of  money  that  may  be  adjudged 
to  be  refunded  to  the  defendant,  and  pay  all  damages  that  may  accrue 
to  any  defendant  or  garnishee  by  reason  of  the  attachment,  or  any  pro- 
cess or  judgment  thereon.  This  bond  may  be  sued  on  in  the  name  of 
the  Teri'itoiy,  by  any  party  injured. 

The  writ  of  attachment  commands  the  sheriff  to  attach  the  defend- 
ant, by  all  and  singular  his  lands  and  tenements,  goods,  moneys,  effects, 
and  credits,  in  whosesoever  hands  they  may  be  found  ;  and  under  it 
garnishees  may  be  summoned,  who  are  required  to  answer  on  oath 
written  allegations  and  interrogatories.^ 

By  an  act  of  Dec.  31,  1873,  the  following  additional  grounds  of 
attachment  were  authorized  :  — 

1.  Where  the  defendant  is  a  corporation  whose  office  or  place  of 
business  is  out  of  this  Territory,  unless  such  corporation  have  a  desig- 
nated agent  in  the  Territory,  iipon  Avhom  service  of  process  may  be 
made  in  suits  against  the  corporation. 

2.  Where  the  defendant  fraudulently  contracted  the  debt  or  incurred 
the  obligation  respecting  which  the  suit  is  brought,  or  obtained  credit 
from  the  plaintiff  by  false  pretences. 

By  the  same  act  it  is  provided  that  notice  of  garnishment  shall  have 
the  effect  of  attaching  all  personal  property,  money,  rights,  credits,  bonds, 
bills,  notes,  drafts,  checks,  or  other  chases  in  action,  due  or  to  become 
due  from  the  gainishee  to  the  defendant,  or  belonging  to  the  defendant 
and  in  the  garnishee's  possession  or  charge,  or  under  his  control,  at  the 
time  of  the  service  of  the  garnishment,  or  which  may  come  into  his 
possession  or  charge,  or  under  his  control,  or  for  or  on  account  of  which 
he  may  become  indebted  to  the  defendant,  between  that  time  and  the 
time  of  filing  his  answer. 

And  by  suid  act  it  is  further  provided  that  any  debt  or  legacy  due 
or  to  become  due  by  an  executor  or  administrator,  or  any  goods,  effects, 
or  credits  in  the  hands  of  an  executor  or  administrator  as  such,  may 

1  Kevised  Statutes  of  New  Mexico,  18G5. 


702  APPENDIX. 

be  attached  in  his  hands  by  process  of  garnishment ;  and  in  like  man- 
ner, money,  ettects,  or  credits  due  or  belonging,  or  to  become  due,  to  an 
executor  or  administrator  as  such,  maybe  attached  in  the  hands  of  the 
debtor  or  person  holding  the  sanie.^ 

TERRITORY  OF  UTAH. 

The  plaintiff,  at  the  time  of  issuing  the  sunmions,  or  at  any  time 
afterwards,  niay  have  the  pro])erty  of  tlie  defendant  attached  as  secu- 
rity for  the  satisfaction  of  any  judgment  that  may  be  recovered,  unless 
the  defendant  give  security  to  pay  such  judgment,  in  the  following 
cases :  — 

In  an  action  upon  a  contract,  wdiich  is  not  secured  by  mortgage, 
lien,  or  pledge  upon  real  or  personal  property  situated  or  being  in  this 
Territory,  or,  if  so  secured,  when  such  security  has  been  rendered  nuga- 
tory by  the  act  of  the  defendant;  or  against  a  defendant  not  residing 
in  this  Territory ;  or  against  a  person  who  has  departed  or  is  about  to 
depart  from  the  Territory  or  county  wherein  the  action  is  brought ; 
or  who  stands  in  defiance  of  an  officer ;  or  conceals  himself  so  that 
process  cannot  be  served  on  him  ;  or  who  is  disposing  of  his  property 
with  intent  to  defraud  his  creditors. 

The  clerk  of  the  court  issues  the  writ  of  attachment,  upon  receiving 
an  affidavit  by  or  on  behalf  of  the  plaintiff,  showing  that  the  defend- 
ant is  indebted  to  the  plaintiff,  specifying  the  nature  and  amount  of 
such  indebtedness,  as  near  as  may  be,  over  and  above  all  legal  set-offs 
and  counter-claims,  and  that  the  same  has  not  been  secured  by  any 
mortgage,  lien,  or  pledge  upon  real  or  j^ersonal  property  situate  or 
being  in  this  Territory,  or,  if  so  secured,  that  the  security  has  been 
rendex'ed  nugatory  by  the  act  of  the  defendant ;  and  that  the  same  is 
an  actual  bo7ia  fide  existing  demand,  due  and  owing  from  the  defend- 
ant to  the  plaintiff ;  and  that  the  attachment  is  not  sought,  and  the 
action  is  not  prosecuted,  to  hinder,  delay,  or  defraud  any  creditor  or 
creditors  of  the  defendant ;  and  specifying  one  or  more  of  the  above 
causes  of  attachment. 

Before  issuing  the  writ,  the  clerk  shall  i-equire  a  written  undertaking 
on  the  part  of  the  plaintifl",  in  a  sum  not  less  than  two  hundred  dollars, 
and  not  exceeding  the  amount  claimed  by  the  plaintiff^  with  sufficient 
sureties,  to  the  effect  that,  if  the  defendant  recover  judgment,  the  plain- 
tiff will  pay  all  costs  that  may  be  awarded  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  attachment,  not  ex- 
ceeding the  sum  specified  in  the  undertaking. 

Under  the  writ,  all  descriptions  of  proi)erty  may  be  attached,  includ- 
ing rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  together  with  the  interest  and  profits  therein, 

1  Laws  of  New  Mexico,  1873-74. 


APPENDIX.  703 

and  all  debts  due  the  defendant ;  and  garnishees  may  be  summoned 
and  charged,  not  only  on  account  of  their  own  debt  to  the  defendant, 
but  on  account  of  credits  in  their  hands  belonging  to  him.^ 

TERRITORY  OF  WASHINGTON. 

The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterward  and  before  judgment,  may  have  the  property  of  the  defend- 
ant attached,  as  a  security  for  the  satisfaction  of  such  judgment  as  he 
may  recover. 

A  writ  of  attachment  is  issued  by  the  clerk  of  the  court  in  which  the 
action  is  pending,  whenever  the  plaintiff,  or  any  one  on  his  behalf, 
makes  and  files  an  affidavit,  and  gives  a  bond ;  the  affidavit  to  allege 
that  a  cause  of  action  exists  against  the  defendant,  and  the  grounds 
thereof,  and  that  the  defendant  is,  — 

1.  A  foreign  corporation  ;  or, 

2.  Is  not  a  resident  of  this  Territory ;  or, 

3.  Has  departed  therefrom  with  intent  to  delay  or  defraud  his  cred- 
itors, or  to  avoid  the  service  of  process,  or  keeps  himself  concealed 
therein  with  the  like  intent ;  or, 

4.  Has  removed  or  is  about  to  remove  any  of  his  property  from 
this  Territory,  with  intent  to  delay  or  defraud  his  creditors ;  or, 

5.  Has  assigned,  secreted,  or  disposed  of  any  of  his  property,  or  is 
about  to  assign,  secrete,  or  dispose  of  it,  with  intent  to  delay  or  defraud 
his  creditors ;  or, 

6.  Has  been  guilty  of  a  fraud  in  contracting  a  debt,  or  in  incurring 
the  obligation  for  which  the  action  is  brought. 

The  bond  is  to  be  given  by  the  plaintiff,  with  one  or  more  sureties, 
in  the  sum  of  not  less  than  one  hundred  dollars,  and  equal  to  the 
amount  for  which  the  plaintiff  demands  judgment ;  and  to  the  effect 
that  the  plaintiff  will  pay  all  costs  that  may  be  adjudged  to  the  de- 
fendant, and  all  damages  which  he  may  sustain  by  reason  of  the  at- 
tachment, if  the  same  be  wrongful,  oppressive,  or  without  sufficient 
cause,  not  exceeding  the  sum  specified  in  the  bond. 

All  propei'ty  of  the  defendant,  not  exempt  from  execution,  may  be 
attached,  including  his  rights  and  shares  in  the  stock  of  any  associa- 
tion or  corporation,  together  with  the  interest  and  profits  thereon ; 
and  garnishees  may  be  summoned.-^ 

TERRITORY   OF   WYOMING. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at  or 
after  the  conunencement  thereof,  have  an  attachment  against  the  prop- 
erty of  the  defendant,  upon  the  following  grounds  :  — 

1  Compiled  Laws  of  Utah,  1876. 

2  Laws  of  Washington,  1877. 


704  APPENDIX. 

1.  When  tlie  defendant  is  a  foreign  corporation,  or  a  non-resident 
of  this  Territory  ;  or, 

2.  Has  absconded,  with  the  intent  to  defraud  his  creditors  ;  or, 

3.  lias  letl  the  county  of  liis  residence  to  avoid  the  service  of  a  sum- 
mons; or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon 
him ;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  juris- 
diction of  the  court,  with  the  intent  to  defraud  his  creditors  ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money, 
for  the  pur])Ose  of  placing  it  beyond  the  reach  of  his  creditors;  or, 

7.  Has  j)roperty,  or  riglits  in  action,  which  he  conceals;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of, 
his  property,  or  a  part  thereof,  with  the  intent  to  defraud  his  credit- 
ors; or, 

9.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for 
which  suit  is  about  to  be  or  has  been  brought ;  or, 

10.  In  cases  not  exceeding  two  hundred  and  fifty  dollars,  in  which 
the  debt  is  not  otherwise  secured,  and  which  has  not  been  paid  when 
due  and  within  ten  days  thereafter  on  demand. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  where  there  is  filed  in  his  oflice  an  aflidavit  of 
the  plaintiff,  his  agent  or  attorney,  stating,  — 

1.  The  nature  of  the  plaintifi''s  claim; 

2.  That  it  is  just; 

3.  The  amount  which  the  aftiant  believes  the  plaintiflE"  ought  to 
recover ; 

4.  The  existence  of  some  one  of  the  above-enumerated  grounds  for 
an  attachment,  or  that  the  affiant  has  good  reason  to  believe  and  does 
believe  that  some  one  of  those  grounds  (stating  what  one)  exists. 

When  tlie  ground  of  attachment  is  that  the  defendant  is  a  foreign 
corporation,  the  order  of  attachment  may  be  issued  Avithout  an  under- 
taking; but  an  attachment  shall  not  be  granted  on  the  ground  that 
the  defendant  is  a  foreign  corporation,  or  a  non-resident  of  this  Terri- 
tory, for  any  claim  other  than  a  debt  or  demand  arising  upon  contract, 
judgment,  or  decree. 

In  all  other  cases,  the  order  of  attachment  shall  not  be  issued  until 
there  has  been  executed  in  the  clerk's  oflice,  by  one  or  more  suflicient 
sureties  of  the  plaintiff",  to  be  approved  by  the  clerk,  an  undertaking, 
not  exceeding  double  the  amount  of  the  plaintiff's  claim,  to  the  effect 
that  the  plaintift'  shall  pay  all  damages  which  the  defendant  may 
sustain  by  reason  of  the  attachment,  if  the  order  be  wrongfully  ob- 
tained. 

All  property  of  the  defendant,  including  rights  or  shares  in  the  stock 
of  any  corporation  or  company,  together  with  the  interest  and  j)rofits 


APPENDIX.  705 

therein,  and  nil  debts  due  the  defendant,  may  be  attached ;  and  gar- 
nishees may  be  summoned.^ 

DISTRICT   OF   COLUMBIA. 

This  district  now  comprises  only  so  much  of  the  original  ten  miles 
square,  as  was  ceded  by  the  State  of  Maryland  to  the  United  States; 
within  which,  by  the  terms  of  the  act  of  Congress  of  February  27, 
1801,  "  concerning  the  District  of  Columbia'''  (2  U.  S,  Statutes  at  Large, 
103),  the  laws  of  Maryland,  as  they  existed  on  that  day,  were  contin- 
ued in  force. 

Up  to  June  1,  1866,  proceedings  by  attachment  in  that  part  of  the 
District  ceded  by  Maiyland,  were  regulated  by  the  laws  of  Maryland ; 
but  on  that  day  an  act  of  Congress  was  passed  (14  U.  S.  Statutes  at 
Large,  54),  regulating  the  subject,  and  practically  superseding  the 
Maryland  law. 

Under  that  act  attachments  may  be  issued  by  the  clerk  of  the 
Supreme  Court  of  the  District,  at  the  commencement  or  during  the 
pendency  of  a  suit,  upon  affidavit  and  undertaking  being  filed  by 
the  plaintiff,  his  agent  or  attorney ;  the  affidavit  to  set  forth  that  the 
plaintiff  has  a  just  right  to  recover  against  the  defendant  what  he 
claims  in  the  declaration,  and  also  — 

1.  That  the  defendant  is  a  non-resident  of  the  District;  or, 

2.  Evades  the  service  of  ordinary  process,  by  concealing  himself,  or 
by  withdrawing  from  the  District  temporarily  ;  or, 

3.  Has  removed,  or  is  about  to  remove  some  of  his  property  from 
the  District,  so  as  to  defeat  just  demands  against  him. 

The  affidavit  must  be  supported  by  the  testimony  of  one  or  more 
witnesses,  showing  the  grounds  upon  which  the  plaintiff,  or  his  agent 
or  attorney,  bases  his  affidavit. 

The  undertaking  must  be  with  sufficient  sureties,  to  be  approved  by 
the  clerk,  to  make  good  all  costs  and  damages  which  the  defendant 
may  sustain  by  reason  of  the  wrongful  suing  out  of  the  attachment. 

1  Compiled  Laws  of  Wyoming,  1876. 


45 


ATTACHMENTS 


UNITED    STATES    CIRCUIT    AND    DISTRICT    COURTS. 


The  following  are  Sections  915  and  916  of  the  Revised  Statutes  of 
the  United  States :  — 

§  915.  In  common-law  causes  in  the  circuit  and  district  courts  the  plaintiff 
shall  be  entitled  to  similar  remedies,  by  attachment  or  other  process,  against 
the  property  of  the  defendant,  which  are  now  provided  by  the  laws  of  the 
State  in  which  such  court  is  held,  for  the  courts  thereof  ;  and  such  circuit  or 
district  courts  may,  from  time  to  time,  by  general  rules,  adopt  such  State 
laws  as  may  be  in  force  in  the  States  where  they  are  held,  in  relation  to  attach- 
ments and  other  process;  Provided,  That  similar  preliminary  affidavits  or 
proofs,  and  similar  security,  as  required  by  such  State  laws,  shall  be  first 
furnished  by  the  party  seeking  such  attachment  or  other  remedy." 
■  §  916.  The  party  recovering  a  judgment  in  any  common-law  cause  in  any 
circuit  or  district  court,  shall  be  entitled  to  similar  remedies  upon  the  same, 
by  execution  or  otherwise,  to  reach  the  property  of  the  judgment  debtor,  as 
are  now  provided  in  like  causes  by  the  laws  of  the  State  in  which  such  court 
is  held,  or  by  any  such  laws  hereafter  enacted  which  may  be  adopted  by  gen- 
eral rules  of  such  circuit  or  distinct  court ;  and  such  courts  may,  from  time  to 
time,  by  general  rules,  adopt  such  State  laws  as  may  hereafter  be  in  force  in 
such  State  in  relation  to  remedies  upon  judgments,  as  aforesaid,  by  execution 
or  otherwise. 


INDEX. 


The  References  are  to  the  Sections. 


ABANDONMENT,  Section 

of  possession  of  attached  property,  by  the  officer,  loses  the  attachment 

202.  257,  290 
by  servant  or  bailee  of  the  officer, 
loses  the  lien  of  the  attachment, 
as  against  a  subsequent  attacher 
or  an  adverse  claimant     .      292  e,  360 
ABATEMENT, 

plea  in,  will  lie  where  a  non-resident  sues  by  attachment,  when  the 

law  allows  the  writ  only  to  residents 11 

will  lie  where  the  cause  of  action  does  not  authorize  attach- 
ment, and  where  there  is  a  variance  between  the  affidavit 

and  attachment  and  the  complaint 36 

will  lie  where  the  plaintiff  did  not  give  the  legally  required 

bond 115 

will  not  reach  a  service  of  attachment  made  on  Sunday  in 

violation  of  law 187 

will  not  lie,  on  the  ground  that  the  property  attached  was 

not  tlie  defendant's 196  a 

when  defendant  may  use  it  to  traverse  the  allegations  of  the 

affidavit 405,  409 

may  be  resorted  to,  on  account   of  defects  in  garnishment 

process 451  d 

when  and  how  attachment  is  pleadable  in 700,  705 

ABOUT, 

meaning  of,  in  an  affidavit  alleging  that  the  defendant  is  about  to  do 

some  particular  act 108  a 

ABSCONDING   DEBTORS, 

who  are  regarded  as 48-53 

ABSENCE, 

casual  and  temporary,  of  a  debtor,  does  not  authorize  proceeding  by 

attachment 39 

what  will  authorize  it 40-42 

is  not  a  convertible  term  with  non-residence 57 


710  INDEX. 

ABSENCE  — conlhmed.  Section 

from  doniioili',  may  be  so  prolonged  as  to  justify  party's  being  sued 

as  a  non-resident 67,  65 

ABSENT   DEBTORS, 

who  are  regarded  as 39-47 

notice  to,  by  publication 436—449 

ACCOUNT, 

action  of,  mav  be  instituted  by  attachment 23 

ACCOUNT-BOOKS, 

are  not  attachable  under  authority  to  attach  evidences  of  debt       .     .    244  c 

not  attachable,  unless  authorized  by  statute 249 

ADMINISTRATOR, 

not  suable,  as  such,  by  attachment 81 

unless  he  make  himself  personally  liable 82 

giving  bond  for  attachment,  cannot  be  sued  thereon  as  administrator, 

but  must  be  sued  individually 183 

of  garnishee,  judgment  against,  is  not  entitled  to  priority  over  other 

debts  of  the  intestate .      226,  453  6 

property  in  hands  of,  which  will  bdong  to  defendant  as  a  distributee, 

after  settlement  of  accounts,  is  not  attachable 251 

of  officer,  may  maintain  trover  for  attached  effects,  for  the  benefit  of 

the  attaching  creditor 291 

of  garnishee,  who  died  before  answering,  cannot  be  compelled  to  take 

his  place  and  answer 451  a 

not  chargeable  as  garnishee,  before  order  of  distribution  or  payment, 

but  is  so  afterward 496,  497 

ADMISSION, 

by  an  attorney  of  a  corporation,  of  service  of  garnishment  process 

thereon,  does   not  authorize   the   corporation  to   be  proceeded 

against  as  'garnishee 451  h 

by  garnishee,  in  his  answer,  of  indebtedness  to  defendant,  should  not 

be  made  where  the  garnishee's   liability  turns  upon   his  having 

given  a  negotiable  note  to  defendant 592 

AFFIDAVIT, 

for  attachment,  under  custom  of  London,  is  merely  of  defendant's 

indebtedness 6 

in  this  country  it  includes  also  special  grounds  for  the  issue  of  the 

writ 6 

variance  between  it  and  the  complaint,  cannot  be  taken  advantage  of 

by  demurrer 36 

may  be  made  by  agent  of  a  corporation  plaintiff 37 

absence   or  insufficiency   of,   is   a  jurisdictional  defect,  not  a  mere 

irregularity,  and  avoids  the  proceeding 87 

cannot  be  amended,  unless  amendment  be  authorized  by  statute    .     .         87 
when   insufficient,  in  ex  parte  proceedings,  to  confer  jurisdiction,  a 

sale  under  the  attachment  confers  no  title 87a-89a 

is  part  of,  and  must  appear  in,  the  record 90 

when  may  be  filed  nunc  jrro  tunc 90 

requirement  of,  is  met  by  filing  a  petition,  sworn  to,  containing  the 

allegations  required  to  be  made 90  a 


INDEX.  711 

AFFIDAVIT  —  continued.  Section 
when  made  on  tbe  day  of  the  issue  of  the  writ,  will  be  considered  as 

having  been  made  before  the  writ  was  issued,  though  its  language 

imply  that  it  was  made  after 90  & 

omission  of  venue  in,  does  not  vitiate  it 90  c 

authentication  of 91 

in  a  suit  by  the  clerk  of  a  court,  in  the  court  of  which  he  is  clerk, 

cannot  be  sworn  to  before  his  deputy 91  a 

connection  of  with  the  suit  must  appear 92 

who  may  make 93 

when  and  how  made  by  agent  or  attorney 94,  94  a 

as  to  amount  and  nature  of  the  debt 95,  96 

different  descriptions  of 97-100 

may  contain  several  different  grounds  of  attachment  ....      101,105  a 
containing  several  different  grounds,  if  any  of  them  be  true,  it  will 

sustain  the  attachment 101 

when  vitiated  by  stating  several  grounds  disjunctively 101 

when  not  thereby  vitiated 102 

should  follow  the  language  of  the  statute 103 

uncertainty  in,  will  vitiate  it 104 

leaving  material  blank  in,  vitiates  it 104  a 

surplusage  in,  not  inconsistent  with   the  substantial  averments,  will 

not  vitiate 105 

may  contain  two  grounds  of  attachment  not  inconsistent  with  each 

other 105  a 

positiveness,  knowledge,  information,  and  belief  must  appear  in,  as 

required  by  statute 106 

substantial  compliance  with  statute,  sufficient 107 

literally  following  the  words  of  the  statute  is  bad,  where,  by  so  doing, 

perjury  could  not  be  assigned 107  a 

insufficient,  cases  of 108 

meaning  in,  of  the  word  about 108  a 

if  two  of  the  same  import  be  made,  the  second  will  be  disregarded     .  109 
insufficient  as  to  one  of  two  joint  debtors,  will  not  justify  attachment 

against  both 110 

may  be  made  before  the  day  of  issuing  the  writ Ill 

delects  in,  may  be  taken  advantage  of,  by  motion  to  quash  or  dissolve 

the  attachment 112 

amendment  of,  when  allowed 113 

AGENT, 

of  corporation,  may  make  affidavit  for  attachment 37 

of  plaintiff,  may  make  such  affidavit 94,  94  a 

of  railroad  company,  employed  in  its  office  to  sell  its  tickets,  cannot 

be  charged  as  its  garnishee 465  a 

of  garnishee,  in  possession  of  effects  of  defendant,  tlie  garnishee  may 

be  cliarged  therefor 484 

money  deposited  by,  in  a  bank,  on  an  account  opened  with  him  as 

agent,  cannot  be  the  foundation  of  a  judgment  against  the  bank 

as  his  garnishee 491  a 


712  INDEX. 

AGENT  —  confinned.  Section 

acting  uiuier  public  authority,  but  not  a  public  officer,  may  be  gar- 
nished in  respect  of  money  ordered  by  that  authority  to  be  paid 

to  dercndant 613 

not  chargeable  as  garnishee  in  respect  of  money  received  from  his 
principal  to  be  paid  to  defendant,  but  which  he  has  not  agreed 

with  defendant  to  pay  to  him 514 

of  a  State,  cannot  be  garnished  in  respect  of  money  held  by  him  in 

that  capacity 516  a 

not  chargeable  as  garnishee  for  debt  of  principal 640 

of  garnishee,  payment  by,  of  garnishee's  debt  to  defendant,  in  igno- 
rance of  the  garnishment,  will  discharge  the  garnishee  ....    674  a 
AGREEMENT, 

to  induce  an  officer  to  forbear  levying  an  attachment,  is  invalid      .     .       188 
between  garnishee  and  defendant,  made  after  the  garnishment,  cannot 

change  garnishee's  liability 674 

ALTERATION, 

of  writ,  dissolves  attachment  as  against  subsequent  attachers    .     ,     .       282 
so  as  to  put  it  in  legal  forai,  docs  not  excuse  officer's  failure 

to  keep  attached  property 29G 

AMENDMENT, 

of  comj)l;unt,  where  attachment  was  obtained  on  a  cause  of  action 
not   authorizing  it,  gives  no  vitality  to  proceedings   under  that 

writ,  but  a  new  writ  must  issue 36  a 

of  affidavit  for  attachment,  not  allowable  unless  authorized  by  statute         87 

when  admissible 113 

of  attachment  bond 146-148 

of  writ,  so  defective  as  to  be  void,  cannot  cut  off  rights  of  third  par- 
ties in  attached  property,  acquired  after  levy 184  a 

of  return  of  attachment,  rules  concerning 211-220 

of  writ,  by  strdcing  out  the  name  of  one  of  two  defendants,  or  by 
changing  the  place  to  which  the  writ  is  returnable,  dissolves  the 

attacinnent  as  between  creditors 282 

of  declaration,  by  filing  a  new  count,  not  appearing  by  the  record  to 
be  for  the  same  cause  of  action  as  that  oi-iginally 
sued  on,  dissolves  the  attachment  as  against  subse- 
quent attachei's 282 

not  altering  or  increasing  demand  sued  on,  docs  not 

dissolve  attachment 285,  287  > 

introducing  new  defendants,  dissolves  the  attachment 

as  against  other  attachers 287 

in  the  given  name  of  defendant,   does  not  dissolve 

attachment 287 

of  answer  of  garnishee 650 

AMICUS   CURIAE, 

may  move  to  quash  attachment  for  irrcgulai'ilies,  sentble 418  a 

ANSWER, 

of  corporation,  as  garnishee,  how  made 472 

what  garnishee  should  state  in 029-632 

evasion  or  equivocation  in,  eifect  of 033 

importance  of  fulness  and  explicitness  in 634 


INDEX. 


'13 


ANSWER  —  continued.  Section 
when  full  and  intelligible,  the  court  will  protect  garnishee  from  fur- 
ther interrogatories 'j'^'^ 

need  not  conform  to  technical  rules  of  pleading 037 

if  as  full  as  garnishee  can  make  it,  will  be  sufficient 638 

need  not  be  confined  to  matters  within  garnishee's  own  knowledge     .       639 
garnishee   may  be  required  to  make  statement  in,   of  his   accounts 

with  defendant 639  a 

what  garnishee  may  and  may  not  be  required  to  state  in       .     .      .    641-649 
garnishee   cannot   be   required  to   state   in,   a  matter   which  would 

deprive  him  of  a  defence  against  his  liability  to  defendant       .     .       644 

nor  that  he  has  been  guilty  of  a  violation  of  law 645 

nor  any  thing  that  will  impair  or  impeach  his  title  to  real  estate     .     .       646 
statements  of  others   may  be  incorporated  in,  but  garnishee  is  not 

compellable  to  use  them 649 

mav  be  amended,  when 6o0 

effect  to  be  given  to 651-655 

construction  to  be  given  to 65G-G58 

judgment  on 6oJ 

APPEAL, 

by  plaintiff,  suspends  right  of  defendant  to  return  of  attached  prop- 
erty after  dissolution  of  attachment 428 

APPEARANCE, 

by  defendant,   and  plea  to  the  merits,  bar  objection,   after  verdict, 

to  the  cause  of  action  as  not  authorizing  attachment,         3G 
sued  as  an  absconding  d-btor,  is  not  proof  that  the 

affidavit  alleging  absconding  was  false 53  a 

to  move  for  dismissal  of  attachment  for  want  of  juris- 
diction, is  not  a  submission  to  the  jurisdiction       .    112,  144 
and  plea  to  the  merits,  waives  defects  in  the  preliminary 

proceedings 112 

to  an  action  wrongly  brought,  is  not  an  appearance  to 

it  after  the  declaration  has  been  amended  .     .     .     .112  a 
is   it  made  bj'  his  moving  to  set  aside,   dissolve,   or 

quash  the  attachment  ? 414 

not  served,  to  move  to  set  aside  a  judgment  by  default 
against  him,  does  not  authorize  a  personal  judgment 

against  him 414 

ARBITRATION, 

reference  to,  by  plaintiff  and  defendant,  of  all  demands  between  tliem, 
will  dissolve  attachment,  unless   only  the  demand  sued  on  was 

referred 288 

ASSAULT   AND  BATTERY, 

in  action  for,  attachment  will  not  lie 10 

ASSIGNEE, 

in   bankruptcy,  not  chargeable  as   garnishee,  in  lespcct  of  effects  in 

his  hands  as  such 511 

of  note,  in  respect  of  which  the  maker  was  charged  as  garnishee  of 
the  payee,  in  a  suit  in  which  the  assignee  was  not  a  party  and 
had  no  notice  of,  may  recover  the  amount  of  the  note  irom  the 
attaching  plaintiff 529 


714  INDEX. 

ASSIGNEE  —  continued.  Section 

who  claimed  in  the  attaclnnent  suit  the  debt  in  respect  of  wliieh  the 
garnisliee  was  charged,  and  judgment  was  rendered  declaring  his 
assignnuMit  invalid,  cannot  afterwards  sue  the  garnishee  for  that 

debt 530 

of  debt,  suing  his  delitor,  who  has  been  garnished  in  respect  thereof, 

is  not  barred  of  recovery  by  the  fact  of  the  garnishment    .     .     .    703  a 
ASSIGNiMENT, 

of  attached  property,  may  be  made   by  defendant,    subject  to  the 

attachment 222 

by  defendant,  made  after  the  attachment,  can- 
not defeat  it 224 

from  defendant  to  himself  may  be  set  up  by  garnishee 522 

when  set  up  by  garnishee,  may  be  impeached  for  fraud    ....    523,  524 
is  not  effected  by  a  mere  direction  to  deliver  or  pay  to  the  supposed 

assignee,  without  his  knowledge  or  assent 525 

is    effected  where   the   appropriation  is  made  by  the  assignor  and 

accepted  by  the  assignee 526 

particular  form  of,  not  material 526 

equitable,  will  hold  the  property,  if  notice  be  given  to  the  garnishee 

in  time  to  make  it  known  to  court 527 

is  effectual,  where  notice  of  it  is  given  to  garnishee  before  attach- 
ment        528 

notified  to  attaching  creditor  before  attachment,   binds  creditor  to 

refund  to  assignee     .     ^ 529 

adjudged  invalid,  when  the  assignee  has  been  made  a  party,  the 
judgment  binds  the  garnishee,  and  bars  action  against  him  by 

the  assignee 530 

conliicting,  cannot  be  tried  in  attachment  suit 531 

garnishee  knowing  of  and  failing  to  set  it  forth  in  his  answer,  the 

judgment  against  him  will  not  protect  him 717 

'evidence  of,  should  be  furnished  by  assignee  to  garnishee    ....       718 

notice  of,  should  be  given  to  maker  of  a  note 719 

{See  Equitable  Assignment.) 
ASSIGNMENT  OF   DEBT, 

{See  Equitable  Assignment.) 

ATTACHMENT, 

origin  of,  is  in  the  custom  of  London 1-3 

its  nature  and  distinctive  features 4-6 

is  a  special  remedy  at  law,  belonging  to  a  court  of  law 4  a 

differences   between  attachment   under  the   custom   of  London   and 

in  the  United  States 5,  6,  7 

tendency  to  enlarge  the  operation  of 7 

under  the  custom,  is  grounded  on  actions  of  debt 9 

debt  for  which  issued  must  be  such  as  will  sustain  an  action  at  law     .  9 

cannot  be  grounded  on  equitable  debts 9 

in  the  United  States,  generally  allowed  only  to  creditors      ....  10 

will  not  lie  in  actions  for  tort 10 

may  be  obtained  by  non-resident 11 

will  lie  for  unli(iuidated  damages  arising  ex  contractu 13-22 


INDEX.  715 

A  TTACHMENT  —  continued.  Section 

but  not  unless  the  contract  itself  afford  a  rule  for  ascertaining  the 

damages 23-26 

in  what  cases  it  will  lie,  when  authorized  in  action  for  "  the  recovery 

of  money  " 27 

the  debt  for  which  it  may  issue  must  possess  an  actual  character,  and 

not  be  dependent  on  a  contingency 27  a 

when  issuable  on  a  debt  not  due,  there  must  be  an  actual  subsisting 

debt  which  will   become  due  by 

the  efflux  of  time 28-30 

on  grounds  peculiar  to  that  case, 
it  cannot  be  obtained  on  those 
grounds  for  a  debt  already  due  .  33 
if  a  debt  already  due  be  combined 
with  it,  the  attachment  is  good  as 
to  the  former,  but  not  as  to  the 

latter 33 

obtained   on  afSdavit  of  a  debt  due,  when  it  was  not  due,  will  be 

quashed 33 

does  not  lie  in  favor  of  one  partner  against  another,  on  account  of 

partnership  transactions 34 

right  of  creditor  to,  is  not  impaired  by  his  holding  collateral  security 

for  the  debt 35 

based   on  a  judgment,  may  be   obtained  in  the  court  in  which  the 

judgment  was  rendered 35  « 

variance  between  it  and  complaint,  is  no  ground  for  demurrer  ...         36 
when  obtained  on  a  cause  of  action  not  authorizing  it,  and  the  de- 
fendant is  not  served,  it  is  a  nullity 36  a 

corporation  may  sue  by 37 

will  lie  against  one  or  more  of  several  defendants 37  a 

against  absent  debtors 39-47 

against  absconding  debtors 48-53  a 

against  debtors  concealing  themselves 54-56 

against  non-resident  debtors 57-67 

againi^t  debtors  removing  their  property 68-71 

against  debtors  fraudulently  disposing  of  their  property  .     .     .     .    71a-77a 

will  lie  against  corporations 78-80 

will  not  lie  against  representative  persons,  as  such 81 

will  lie  against  administrator  or  executor  who   makes  himself  per- 
sonally liable 82 

cannot  be  issued  under  any  general  jurisdiction 83 

issue  of,  is  an  exercise  of  jurisdiction 86 

issued  without  affidavit,  when  one  is  required  by  law,  is  void   .     .        84,  86 
absence  or  insufficiency  of  affidavit  for,  is  a  jurisdictional  defect,  not 

a  mere  irregularity 87 

may  be  dissolved  or  quashed,  for  defects  in  affidavit 112 

may  be  avoided,  when  issued  without  bond,  wiiere  bond  is  required,  115,  116 
issued  without  bond,  will  justify  oifieer,  unless  the  defect  appear  on 

the  face  of  the  writ 117 

party  causing  to  issue,  and  officer  issuing,  without  bond,  liable  as 

trespassers 118 


71 G  INDEX. 

ATTACHMENT  —  continued.  Section 

cannot  be  executed  by  an  officer  until  the  process  has  come  into  his 

hands,  though  he  has  information  of  its  liaving  been  issued  .  .  183  a 
issued  by  an  oHicer  having  no  legal  power  to  issue  it,  is  void  .  .  .  184 
if  so  defective  that  it  is  void,  a  levy  under  it  cannot  be  cured  by 

amendment,  so  as  to  cut  off  rights  of  third  parties,  accjuired  after  , 

the  levy 184  J 

if  legal  in  form,  and  issued  by  a  court  having  jurisdiction,  will  justify 

oflicer  in  executing 185 

if  officer  levy  it  on  property  found  in  the  possession  of  the  defendant, 

he  can  justify  the  levy  by  producing  the  writ 185  a 

if  the  property  is  found  in  tiie  possession  of  a  stranger  claiming  title, 
the  officer  must  prove  that  the   defendant  was  indebted  to  the 

plaintiff,  and  that  the  writ  was  regularly  issued 185  a  ' 

issued  irregularly,  will  not  protect  the  party  who  caused  its  issue  .     .    185  b 

or  without  jurisdiction,  the  plaintiff,  when  sued  as 

a  trespasser,  cannot  set  up  as  a  defence  that  he 

returned  the  property  to  the  defendant,  unless 

the  latter  accepted  it,  nor  that  it  was  sold  under 

an  execution  in  Jiis  favor 185  c 

person  specially  deputed  to  serve,  has  all  the  powers  of  an  officer      .       186 
may  be  executed  on  Sunday,  where  not  prohibited  by  statute  .     .     .       187 
if  delivered  to  an  officer  on  Sunday,  where  by  law  the  service  of  writs 
on  that  day  is  prohibited,  he  is  not  to  be  regarded  as  having 

officially  received  it  on  that  day 187 

authority  to  levy  continues  till  the  return  day  of  the  writ  ....  187  a 
levy  of,  after  return  day,  is  of  no  force  against  third  persons  .  .  .  187  b 
levy  of,  should  be  made  on  any  property  of  the  defendant  which  the 

officer  can  find 188 

agreement  to  induce  officer  to  omit  levy  of,  is  void 188 

officer  may  demand  indemnity  before  proceeding  to  levy      ....       189 
officer  taking  a  writ,  with  directions  to  serve  in  a  particular  manner, 
without  demanding  indemnity,  is  bound  to  serve  it,  if  he  can, 

according  to  instructions 189  a 

should  be  levied  on  sufficient  property 190 

should  be  executed  as  soon  as  practicable 191 

reasonable  diligence  in  executing  should  be  exercised 191  a 

no  action  can  be  taken  under,  after  judgment 191  b 

execution  of,  should  be  a  continuous  act 192 

service  of,  effected  by  unlawful   or  fraudulent  means,  is  illegal  and 

void 193 

if  not  conformable  to  law,  creates  no  lien       .....       194 

must  be  so  made  as  to  do  no  wrong  to  defendant    ...       194 

should  not  be  levied  on  property  not  liable  to  attachment     ....       195 

V  levied  on  property  not  the  defendant's,  officer  is  a  trespasser   .     .    196,  197 

what  will  amount  to  a  levy  of,  for  which  tres[)ass  will  lie      ....       198 

of  goods  of  a  stranger,  intermixed   with   those  of  defendant,  rules 

concerning 199 

officer,  in  executing,  may  enter  store  of  third  person 200 

may  not  use  store  of  third  person  to  keep  at- 
tached property  in 200 


INDEX.  717 

ATTACHMENT  —  continued.  Section 

officer,  in  executing,  may  not  eject  defendant 200 

\jiust  demand  admittance  before  using  force      .       200 
may   not  force  an   entrance   into   a  dwelling- 
house,  unless  property  of  a  stranger  be  se- 
creted therein 200 

return  of,  rules  concerning 204-220 

.  mere  issue  of,  has  no  force  against  defendant's  property,  but  a  levy  is 

necessary 221 

lodgment  of,  in  hands  of  an  officer,  has  no  force  as  against  the  de- 
fendant's property 221 

effect  of,  dates  from  time  of  levy 221' 

effect  and  office  of  levy  of 221-228 

precedence  of,  in  relation  to  judgments  and  execution     .     .     .     ,    229,  230 

as  to  time  of  service 231 

of  real  estate,  doctrines  concerning 232-242 

of  personal  property,  doctrines  concerning 244-259 

simultaneous,  successive,  conHicting,  and  fraudulent,  doctrines  con- 
cerning      260-289 

caused  by  a  debtor,  without  the  knowledge  of  his  creditor,  when  good       281 
dissolved,  as  to  subsequent  attachers,  by  alteration  of  writ,  or  chang- 
ing or  increasing  demand 282 

lien  of,  is  lost,  as  against  other  attachers  or  bona  fide  purchasers,  by 
letting  the  property  remain  in  defendant's  possession,  but  not  as 

against  the  defendant 292  a 

notice  of,  to  another  officer  attaching  effects  already  attached,  effect 

of 292  6 

effect  upon,  of  officer's  taking  the  property  into  a  foreign  jurisdiction,   292  d 
of  officer's   servant  abandoning  possession  of  attached 

property 292  e 

improvidently  issued,  how  defeated 397-410 

dissolution  of,  how  produced,  and  effect  of 411-431 

may  be  dissolved  as  to  subsequent  attachments,  but  remain  in  force 

as  against  defendant 422,  423 

when  a  defence,  and  the  manner  of  pleading  it  by  garnishee,  when 

sued  by  the  attachment  defendant 699-723 

maUcious,  action  for 724-745 

ATTACHMENT   BOND, 

nature  of 114 

when  required  to  be  given  before  the  attachment  issues,  a  failure  so 

to  give  it  is  fatal 115,  116 

if  dated  after  the  writ,  it  may  be  shown  to  have  been  so  dated  by 

mistake 116  a 

insufficiency  of,  does  not  make  the  officer  executing  the  writ  a  tres- 
passer      117 

but  the  plaintiff,  and  the  officer  issuing  the  writ,  are,  in  such  case, 

liable  as  trespassers 118 

must  appear  in  the  record 119 

omission  to  recite  in  the  writ  that  a  bond  was  given,  will  not  vitiate 

the  attachment 119 


718  INDEX. 

ATTACIBFENT  BO'SD  — continued.  Section 

approval  of  oilioer  need  not  be  indorsed  on 120 

his  receiving  and  filing  it,  estops  liiin  Irom  denying  tbat  he  approved 

it 120 

the  issue  of  the  writ  is,  as  against  the  defendant,  an  approval  by  the 

clerk 120 

the  approval  of  the  clerk  is  hut  prima  facie  evidence  of  the  sufficiency 

of  the  sureties 120 

given  by  a  clerk  of  court  suing  by  attachment  in  his  own  court,  cannot 

be  approved  by  his  deputy 120 

must  be  actually  executed  and  delivered  before  the  writ  issues  .  .  .  121 
when  executed  and  delivered,  no  agreement  between  the  plaintiff  and 

the  offieer,  as  to  any  condition  subsequent  upon  which  it  is  to  be 

unavailable,  is  good 121  a 

required  to  be  executed  in  the  office  of  the  clerk,  must  be  executed  in 

his  presence 121  b 

accidental  destruction  of,  before  its  return  into  court,  will  not  authoi-- 

ize  the  quashing  of  the  writ 122 

failure  of  officer  to  return  it  into  court,  will  not  discharge  the  attach- 
ment, if  the  plaintiff  be  not  to  blame 122 

effect  of  recitals  in,  as  showing  when  it  was  given 123 

sufficiency  of,  may  be  questioned 124 

if  not  such  as  the  law  requires,  it  is  the  same  as  if  none  were  given    .       124 

substantially  complying  with  the  statute  is  sufficient 124 

objections  to,  must  be  made  before  pleading  to  the  merits  ....  124 
insolvency  of  surety  in,  may  be  taken  advantage  of  after  pleading  .  124 
omission  from,  of  a  word,  will  not  vitiate   it,  if,  by  looking  at  the 

whole  instrument  and  the  statute,  it  is  apparent  what  word  was 

intended  to  be  inserted 124 

if  required  to  be  in  a  stated  penalty,  the  execution  of  a  stipulation  or 

a  covenant,  without  a  penalty,  is  not  sufficient 125 

where  statute,  in  one  part,  prescribes  the  terms  of  the  condition,  and 

in  another  part  sets  forth  the  fo)'m  of  the  condition,  the  form 

must  be  followed 126 

misstatement  in,  of  the  court  in  which  the  suit  is  brought,  is  a  fatal 

error 127 

but  not  a  misrecital  of  the  term  of  the  court 127 

date  in,  is  not  necessary,  unless  required  by  statute 128 

insufficient  description  in,  of  the  parties  or  the  suit,  will  vitiate  it  .      .        129 

addition  in,  of  terms  not  required,  will  not  vitiate  it 130 

if  required  to  be  given  by  the  plaintiff,  and  no  law  authorizes  it  to  be 

given  by  another,  no  other  can  give  it 131 

given  by  one  as  agent  of  the  plaintiff,  but  having  no  authority  to  act 

as  such,  and  signed  by  sufficient  sureties,  is  sufficient  where  the 

law  did  not  require  the  plaintiff  to  make  the  bond 131 

given  by  an  attorney  at  law,  conditioned  that  he  should  pay  all  costs, 

&c.,  in  case  he  should  be  cast,  is  bad 131 

when  authorized  to  be  given  by  agent  or  attorney,  it  may  be  given 

by  an  attorney  at  law 132 


INDEX.  719 

ATTACHMENT  BO^D —continued.  Section 

purporting  to  be  the  act  of  the  plaintiff,  bj'  an  attorney  in  fact,  it 
will  not  be  held  to  be  a  nullity,  because  no  power  of  attorney  is 

produced 133 

in  such  case,  the  authority  will  be  presumed  on  the  hearing  of  a  mo- 
tion to  quash 133 

authority  of  attorney  must  be  questioned  by  plea,  not  by  motion  .     .       133 

ratification  of,  by  party  whose  name  is  used,  effect  of 134 

where  sureties  are  required  by  the  law,  without  the  number  being 

stated,  one  will  be  sufficient 134  a 

if  statute  require  two  good  and  sufficient  sureties  in  at  least  double 
the  debt  or  sum  demanded,  and  each  of  two  justify  in  an  amount 

equal  to  that  sworn  to,  it  is  sufficient 134  h 

sureties  in,  must  be  good  for  double  the  debt  sworn  to,  where  that  is 
required  by  law,  and  if  found  not  so,  the  plaintiff  cannot  reduce 
his   demand,  by  amendment,   so  as  to  make   it  one-half  of  the 

amount  for  which  they  are  good 134  c 

residence  of  sureties  in,  need  not  be  stated 135 

given  in  a  suit  by  a  copartnership,  the  firm  name  may  be  signed  by 
one  of  the  firm,  but  not  where  he  assumes  only  an  individual 

obligation 136 

who  should  be  named  as  obligees  in 137 

may   be  in  a  greater  sum  than  is   required  by  law,  but   not  in   a 

less 135 

where  the  attachment  is  issued  without  an  oath  stating  the  amount 
actually  sued  for,  the  bond  must  be  in  double  the  amount  of 
damages  stated  in  the  writ,  in  assumpsit;  in  debt,  in  double  the 

amount  of  the  debt  stated  in  the  writ 140 

where  correct  in  amount,  in  reference  to  the  sum  sworn  to,  the  attach- 
ment will  not  be  invalidated  by  the  plaintiff's  claiming  in  his 

petition  more  than  that  sworn  to 141 

if  a  sum  be  sworn  to  as  due,  "  besides  interest,  damages,"  &c.,  the 

amount  named  is  the  criterion  of  the  amount  of  the  bond       .     .       141 
if  plaintiff  claim   a  certain  sum,  with  interest  at  a  designated  rate, 
from  a  given   date,  or  name  a  sum  as  interest,  the   amount  of 
interest  is  a  part  of  the  sum  constituting  the  measure  of  the 

amount  of  the  bond 141 

misrecital  in,  of  the  amount  sworn  to,  making  the  amount  of  the 
bond  appear  less  than  double  the  amount  sued  for,  will  not  vitiate 

the  bond 14-2 

defect  in,  cannot  be  taken  advantage  of  by  a  subsequent  attacher  .  143 
exception  to,  on  account  of  defects  in,  must  be  taken  in  limine  .  .  144 
defects  in,  how  affected  by  appearance  of  defendant,  and  his  plea  to 

the  merits 1-14 

cannot  be  taken  advantage  of  in  appellate  court 144 

insolvency  of  sureties  in,  cannot  authorize  a  requirement  of  addi- 
tional security,  uidess  so  provided  by  law        145 

cannot  be  amended,  except  under  statutory  authority 146 

defective,  may  be  amended  by  the  substitution  of  a  new  and  perfect 

one,  where  the  law  authorizes  amendment  of  bond 147 


720 


INDEX. 


ATTACIIMKNT   JiO^Tf  —  coiifimml.  Section 

where  the  hiw  authorizes  aineiuiment,  a  defect  is  not  cause  for  (Quash- 
ing the  writ,  until  opportunity  is  given  for  amendment       .     .     .        147 

application  to  amend,  must  contemplate  the  removal  of  all  objections 

to  the  bond 148 

amended,  is  substituted   for  that   originally  given,  and  sustains  the 

attachment  ab  inilio 148  a 

new  surety  in,  may  be  substituted,  where  the  plaintiff  needs  the  testi- 
mony of  a  surety 149 

liability  of  obligors  in,  to  defendant.  Is  not  impaired  by  errors  and 

delects  in  the  bond 150 

though  taken  after  the  issue  of  the  writ,  that  is  no  defence  to  the 

obligors 150 

omission  from,  of  part  of  the  required  condition,  does  not  invalidate 

the  bond  :  it  is  good  as  far  as  it  goes 150 

executed  without  being  required  by  law,  is  yet  good  as  a  common-law 

bond 151 

if  required  to  be   approved  by  the  court,  and   it  be  approved  by  a 

judge  in  vacation,  it  is  good  as  a  common-law  bond 151 

obligation  of,  extends  on  to  the  final  determination  of  tiie  suit       .     .       152 

execution  of,  does  not  supersede  action  for  malicious  attachment  .     .       154 

is  not  merely  a  security  for  what  may  be  recovered  in  an  action  for 

malicious  attachment 155 

recovery  on,  is  not  restricted  to  such  damages  as  may  be  recovered 
in  an  action  for  malicious  prosecution,  but  will  embrace  actual 
damage  sustained 155-161 

action  on,  can  be  maintained  only  by  the  defendant 162 

where  defendant  was  served,  cannot  be  sustained  until  the  attachment 
shall  have  been  discharged,  but  may  be,  where  the  proceedings 
are  ex  parte,  after  the  ])laintiff  has  obtained  judgment        .     .     .    162  a 

in  favor  of  several  defendants,  who  may  sue  on 163 

to  maintain  suit  on,  not  necessary  to  get  order  of  court  to   deliver 

bond  to  defendant 164 

sureties  in,  liable  only  in  reference  to  the  particular  writ  for  obtain- 
ing which  it  was  given 165 

to  maintain  action  on,  it  is  not  necessary  to  recover  damages  first  in 

a  distinct  action 166 

where  suit  may  be  maintained  on,  without  previous  recovery  of  dam- 
ages in  a  distinct  action,  the  sureties  may  be  sued  jointly  with 
the  principal 166  a 

debt  is  proper  form  of  action  on 167 

in   action  on,  the   declaration  must   show  that   the   attachment  was 

wrongfully  sued  out,  and  what  damages  plaintiff  has  sustained    .       167 

how  breaches  of  should  be  assigned ■ 168 

recital  in  condition  of,  that  {)laintiff  had  issued  a  writ  of  attachment 
against  defendant,  estops  the  obligors  from  denying  that  the 
attachment  was  sued  out 169 

action  on,  does  not  lie  for  mere  failure  to  jirosecute  the  attach- 
ment       170 


INDEX.  721 

ATTACHMENT  BO^DS  — continued.  Section 

may  be  sued   on   by  defendant,  where  judgment  was  rendered  in  his 
favor  on  the  merits,  though  he   did  not  put  in  issue  the  truth  of 

the  affidavit 170 

inaction  on,  where  there  has  been  no  trial  of  the  rightfuhiess  of  the 
attachment,  the  obligors  may  show,  in  defence,  that 
the  plaintiff  had  good  cause  to  believe  that  the 
alleged  grounds  for  attachment  were  true  ....  170  a 
where  the  attachment  suit  was  ex  jxirte,  what  the  declara- 
tion must  allege 171 

where  given  to  obtain  an  original  attachment,  the  obligor 
cannot  defend  by  showing  that,  when  he  obtained  the 
attachment,  facts  existed  which  would  have  justified 

an  ancillarij  attachment 172 

where  the  attaching  plaintiff,  in  obtaining  the  attach- 
ment, complied  with  all  the  requirements  of  the  law, 
the  defendant  must  show  that  it  was  wrongfully  obtained  173 
the  failure  of  the  attaching  plaintiff  to  sustain  his  action' 
is  prima  facie  evidence  to  sustain  the  action  on  the 
bond,   but  not   conclusive   that   the    attachment    was 

wrongfully  obtained 173 

if  the  attachment  suit  was  terminated  by  a  finding  in 
favor  of  the  defendant,  on  an  issue  as  to  the  truth  of 
the  facts  alleged  as  the  ground  for  the  attachment, 
the  judgment  will  conclusively  establish  that  the  attach- 
ment was  wrongfully  obtained 173 

if  the  attachment  plaintiff  recovered  a  less  sum  than  the 
law  authorized  an  attachment  to  issue  for,  it  is  com- 
plete evidence    that    the   attachment  was   wrongfully 

obtained 173 

it  is  no  defence  that  the  return  on  the  attachment  does 
not  show  that  a  levy  was  made,  if  a  levy  de  facto  was 

made 173  a 

it  is  no  justification  or  mitigation  that  the  claim  sued 
on  was  a  just  one,  if  the  statutory  ground  for  attach- 
ment did  not  exist 173  a 

the  question  of  good   faith,   or  probable  cause,   is   not 

involved 174 

actual  damage  may  be  recovered 174 

not  necessary  for  the  attachment  defendant  to  show  that 

he  has  paid  the  actual  damages  sustained      ....       174 
special  damages  are  not  recover  ble  under  general  aver- 
ment of  damages  ;   but  they  must  be  specially  averred       174 
what  are  actual  damages  that  may  be  recovered    .     .    175-181 
liability  of  attachment   plaintiff  on,  exists,  as  well  where   the  attach- 
ment is  sued  out  by  his  attorney,  as  where  sued  out  by  himself  .        182 

an  administrator  giving,  is  liable  thereon  individually 183 

ATTORNEY   AT   LAW, 

may  make  affidavit  for  attachment 94 

may  give  attachment  bond 132 

4G 


722  INDEX. 

ATTORNEY  AT  I.A^V  —  continued.  Section 

authority  of,  to  give  attaclnneut  bond,  will  l)f  presuim'd,  on  a  motion 
to  (jiiash  or  dissolve  attachment  i'or  insufficiency  of  bond,  but 
may  be  (jnestioned  by  pica 133 

showing  his  want  of  authority  to  execute  the  bond,  will  not  abate  the 
action,  unless  he  had  no  authority  to  institute  the  suit,  and  the 
suit  is  not  prosecuted  with  the  authority  or  consent  of  the  plain- 
tiff  •       133 

money  paid  to,  on  a  claim  in  his  hands  for  collection,  cannot  be  levied 

on  as  the  property  of  his  client 246 

cannot  admit  service  of  garnishment  process  on  a  corporation,  so  as 

to  authorize  it  to  be  charged  as  garnishee 451  b 

may  be  garnished 464,  615 

cannot  be  charged  as  garnishee,  in  respect  of  a  claim  in  his  hands  for 

collection "l^l 

to  what  extent  he  may,  as  garnishee,  be  required  to  disclose  matters 

that  lay  between  his  client  and  himself 641 

AUDITOR, 

of  a  State  cannot  be  garnished  on  account  of  money  ordered  by  the 

legislature  to  be  paid  to  a  party 516  a 

B. 

BAIL, 

defendant  may  give,' and  dissolve  attachment 312-317 

when   given    by  defendant,  he    may  interpose   to   prevent  judgment 

against   garnishee 658  c 

BAIL-BOND, 

may  be  given  at  any  time  before  judgment 312,  313 

no  consideration  need  be  inserted  therein 313  a 

given  to  officer  or  his  successor,  may  be  sued  on  by  the  officer  after 

he  ceases  to  be  such,  or  by  his  successor 313  6 

in  taking,  officer  is  not  the  agent  of  the  plaintiff 314 

if  terms  of,  are  in  substantial  compliance  with  the  statute,  it  is  suffi- 
cient        314  a 

cannot  be   given  by  one  of  two  defendants  to  discharge  his  separate 

effects,  unless  bail  and  appearance  be  entered  for  both,  semhle    .       315 
obligors   in,  cannot  object  to   its  validity  because   only  one   surety 

signed  it,  when  the  statute  required  more  than  one       ....       316 
new  sureties  in,   cannot  be   required,  because  of  the  insolvency  of 

those  first  taken,  unless  statute  authorize  it 316  a 

effect  of  giving 317-321 

after  giving,  the  property  is  no  longer  under  control  of  the  court       .       321 
is   available  to  plaintiff,  only  for  satisfaction  of  such  judgment  as  he 

may  recover 322 

to  recover  upon,  it  is  not  necessary  that  the  judgment  in  the  attach- 
ment suit  should  express  that  it  is  with  privilege  on  the  property 

attached 322  a 

with  cond.tion  in  the  alternative,  for  payment  of  the  debt,  or  for  the 
value  of  the  property,  sureties  cannot  restrict  the  judgment 
on  the  bond  to  the  value,  but  must  pay  the  debt 322  b 


INDEX. 


723 


BAIL-BOND  —  continued.  Section 

obligation  of,  what  will  not  discharge 323 

tender  by  surety  in,  of  the  amount  of  the  judgment  recovered  against 

him,  and  refusal  thereof  by  plaintiff,  will  discharge  the  surety     .    323  a 
sureties  in,  released  by  the  discharge  of  defendant  in  bankruptcy       .     323  h 
may  be  sued  on  the  bond,  without  issuing  execution  against 

the  principal,  semhle 324 

in  action  upon,  if  plaintiff  enter  a  nol.  pros,  as  to  one  of  the  princi- 
pals, and  take   judgment  against  the  other  and  the  sureties,  it 

discharges  the  sureties,  semhle 325 

joinder  of  a  new  defendant  in  the  action  in  which  the  bond  was  given, 

discharges  sureties  in 325 

failure  to  recover  against  some  of  several  defendants  discharges  sure- 
ties in 325 

sureties  in,  are  discharged  by  change  of  plaintiffs  in  the  action  without 

sureties'  consent 325  a 

BAILMENT   OF   ATTACHED   PROPERTY, 

nature  and  terms  of 344-348 

bailee  is  the  servant  of  the  officer 349 

does  not  destroy  the  lien  of  the  attachment 351,  352 

officer  may  retake  property  from  bailee 356,  357 

if  bailee  let  the  property  go  back  into  defendant's  hands,  or  abandon 

it,  the  attachment  is  dissolved 359,  360 

liability  of  officer  for  fidelity  and  pecuniary  ability  of  bailee      .     .    361-364 

officer's  liability  to  defendant  for  bailed  property 365 

rights  of  bailee  in  the  property 366-369 

duties  of  bailee  in  regard  to  the  property 370 

remedies  of  officer  for  a  disturbance  of  his  possession  of  attached 

property 371 

remedies  of  officer  against  bailee 372 

officer  has  no  right  of  action  against  bailee,  until  after  demand  on 

him ^^73 

execution  under  which  demand  is  made  must  be  regular       ....       375 

demand  on  bailee  need  not  be  personal 376 

bailee  must  be  informed   that  the  property  is  demanded   for  the  pur- 
pose of  being  subjected  to  execution 377 

demand  upon  one  of  several  bailees,  sufficient 378 

form  of  action  against  bailee 379 

what  will  establish  conversion  by  bailee 380 

defences  by  bailee 381-392 

measure  of  recovery  against  bailee 393-395 

judgment  against  bailee  is  discharged  by  satisfaction  of  that  against 

defendant 396 

BAILOR, 

property  of,  in  the  hands  of  a  bailee  for  hire,  cannot  be  attached  dur- 
ing the  term  of  the  bailment 245 

BANK, 

cannot  be  charged  as  garnishee  of  a  depositor  who  deposits  money 

as  agent  with  it 491  a 


724  INDEX. 

BANK-KOTES,  Section 

may  be  attached 244 

current  as  money,  garnishee  may  be   charged  in  respect  of,  but  not 

■where  they  have  been  presented  lor  payment  and  refused       .     .       481 
BANKRUPTCY, 

defendant's  discharge  in,  releases  sureties  in  bail-bond 323  h 

releases  sureties  in  deliver}-  bond  ....    341  h 

of  defendant,  does  not  dissolve  attachment  lien 425 

assignee  in.  cannot  be  charged  as  garnishee  of  bankrupt      ....       511 
BILL  OF   LADING, 

in   action   founded   on,  attachment  will  lie,  whether  the  goods  were 

not  delivered,  or  were  delivered  in  a  damaged  condition    ...         13 
BLANK, 

material,  in  an  affidavit  for  attachment,  vitiates  it 104  a 

BOND, 

{See  Attachment  Bond.) 


c. 

CAPTURE, 

by  a  hostile  force,  of  that  part  of  an  officer's  precinct  in  which  he  had 
attached  property,  will  not  excuse  his  failure  to  have  the  prop- 
erty forthcoming  on  execution,  unless 298 

CAUSE   OF   ACTION, 

for  which  attachment  will  lie 9-34 

if  one  for  which  attachment  will  not  lie,  the  defect  cannot  be  reached 
by  demurrer,  but  by  motion  to  dissolve,  or  by  plea  in  abatement, 
and  no  advantage  can  be  taken  of  the  defect,  after  verdict,  where 
the  defendant  appears  and  pleads  to  the  merits 36 

not  authorizing  an  attachment,  if  attachment  be  obtained  on,  and  the 
deiendant  is  not  served  with  process,  the  attachment  is  a  nul- 
lity   36  a 

defendant  must  have,  against  garnishee,  in  order  to  charge  the  latter       541 
CHANGE   OF  DEMAND, 

in  attachment  suit,  will  dissolve  attachment  as  to  subsequent  attach- 
ing creditors 282 

CHOSE   IN  ACTION, 

husband's  interest  in  that  of  wife,  can  it  be  attached.'* 247 

holder  of,  for  collection,  may  sue  thereon,  though  he  has  been  gar- 
nished, where  the  statute  authorizes  garnishee  to  be  charged  on 
account  thereof 453  a 

garnishee  not  chargeable  for 481 

equitably  assigned,  cannot  be  attached  for  debt  of  assignor     .     .    528,  604 

may  be  assigned 603 

CHRISTMAS, 

is  not  dies  7ion  Juridlcus 187 

CLAIMANT, 

of  debt,  in  respect  of  which  it  is  sought  to  charge  a  garnishee,  cannot 
intervene  alter  the  plaintiff  has  abandoned  all  right  to  chai'ge 
the  garnishee 460  a 


INDEX. 


725 


CLAIMANT  —  continued.  Section 

of  debt,  is   barred  from  suing  garnishee  on  it,  when  he  claimed  it  in 

the  attachment  suit,  and  his  claim  was  adjudged  invalid     .     .     .       530 
CLERK   OF   COURT, 

cannot  make  affidavit  for  attachment  before  his  deputy 91  a 

issuing  an  attachment  without  bond,  is  liable  as  a  trespasser  to  de- 
fendant, if  the  writ  be  levied  on  his  property 118 

his  approval  of  an  attachment  bond  need  not  be  indorsed  thereon       .        120 
receiving  and  filing  attachment  bond,  estops  him  from  denying  that 

he  approved  it l^*-* 

suinn-  bv  attachment  in  his   own  court,  cannot  have  the  attachment 

bond  approved  by  his  own  deputy l-'J 

money  in  hands  of,  virtute  officii,  not  attachable 251 

not  subject  to  garnishment  in  respect  thereof 509 

CO-DEBTORS, 

jointly  and  severally  liable,  any  one  may  be  garnished  and  subjected 

to  judgment  for  the  whole  debt 560 

payment  by  one   of,  after  garnishment  of  the  other,  will  discharge 

the  garnishee ^"*^ 

jointly  liable  for  a  debt,  one  cannot  be  charged  as  garnishee  without 

joining  the  others ^"1 

but  "if  part   are    out   of  the  jurisdiction,  those   garnished   may   be 

charged ^^-' 

if  part  are  in  a  foreign  country,  those  residing  in  this  country  cannot 

be  charged  as  garnishees ^"* 

COLLATERAL   SECURITY, 

the  holding  of,  does  not  prevent  creditor  suing  by  attachment  ...         35 
COMMON   CARRIER, 

may  be  charged  as  garnishee '162 

COMPTROLLER, 

of  a  State,  cannot  be  garnished  on  account  of  salary  payable  to  a 
State  officer,  or  on  account  of  bonds  deposited  with  him  by  a 

foreign  insurance  company 516  a 

CONCEALMENT, 

of  himself,  by  a  debtor,  a  ground  of  attachment 54-56 

CONFt:SSION   OF   JUDGMENT, 

by  defendant,  before  the  time  when  the  action  would  be  regularly 
triable,  dissolves  lien  of  plaintiff's  attachment,  as  against  subse- 
quent attachers 262 

CONFLICTING  ATTACHMENTS, 

when  and  how  one  of  several,  may  attach  and  set  aside  others       .     272-275 
CONFUSION   OF   GOODS, 

doctrine  of,  in  regard  to  attachments 199 

CONSIDERATIO.'^, 

failure  of,  may  be  pleaded  by  garnishee  against  his  liability  to  de- 
fendant   679 

CONSIGNEE, 

having  privilege  on  consignment,  is  entitled  to  have  his  claim  on  the 
property  paid,  before  it  can  be  attached  in  suit  against  the 
consignor 245 


726  INDEX. 

CONSIGNEE  —  continued.  Section 

may  maintain  replevin  in  sucli   case,  against  olHcer,  ibr  taking  the 

property 245 

acquires  no  title  to  property  shipped  to  him,  while  it  is  in  transitu  ; 

and  it  may,  while  so,  be  attached  for  consignor's  debt  ....       246 
CONSPIRACY, 

action  for,  may  be  maintained  by  a  creditor  against  his  debtor  and 

a  third  person,  for  frau(hdent  attacliment 277 

CONSTRUCTION, 

to  be  given  to  garnishee's  answer 656-658 

CONSTRUCTIVE   POSSESSION, 

of  personal  property,   by  garnishee,   will  not  suflice  to  make  him 

liable 483 

CONTINGENCY, 

debt  dependent  on,  will  not  sustain  an  attachment 24 

will  not  authorize  judgment  against  a  garnishee    551,  552 
CONTRACT, 

nature  of,  between  garnishee  and  defendant,  cannot  be  changed  by 

garnishment 517-520 

CORAM  NON  JUDICE, 

proceedings  are,  where  no  property  is  attached  and  defendant  is  not 

served    5 

CORPORATION, 

may  sue  by  attachment 37 

agent  of,  may  make  affidavit 37 

is  considered  an  inhabitant  of  the  State  In  which  it  was  incorporated         79 

foreign,  may  be  sued  by  attachment  as  a  non-resident 79 

foreign,  character  of,  is   determined  by  the  i^lace  where  its  charter 

was  granted 80 

where  chartered  by  two  or  more  States,  it  is  a  domestic  corporation 

in  each 80 

stock  in,  not  attachable,  without  express  statute 244 

when  authority  is  given  by  law  to  attach,  the  authority  ex- 
tends only  to  corporations  in  that  State 244 

how  to  be  attached 269 

civil  death  of,  dissolves  attachment 424 

cannot  be  charged  as  garnishee,  on  the  basis  of  an  admission,  by  its 

attorney,  of  service  of  garnishment  process 451  b 

domestic,  may  be  garnished 469 

how  served  with  garnishment  process 470 

liability  of,  as  garnishee  governed  by  same  rules  as  individuals     .     .       471 
not  liable  as  garnishee  of  one  on  account  of  his  being  a  stockholder  .       471 

how  to  answer  as  garnishee 472 

foreign,  may  not  be  garnished 478 

chartered  in  several  States,  may  be  garnished  in  any  of  them  .     .     .       479 

municipal,  cannot  be  garnished 516 

taxes  due  to,  not  attachable 516 

COSTS, 

cannot  be  deducted  from   proceeds  of  attached    property,  not   the 

defendant's 196  c 


INDEX.  727 

COSTS  —  continued.  Section 

garnishee  not  liable  for,  when  he  does  not  assume  the  attitude  of  a 

litigant 662 

aliter,  if  he  denies  indebtedness,  and  is  found  indebted  .      .     .     .     .       662 
COUNTY  TREASURER, 

cannot  be  charged  as  garnishee  of  one  for  whom  he  holds  money  to 

pay  him  for  Iiis  services  as  a  juror 49l3 

COURT  OF   EQUITY, 

will  not  interfere  to  set  aside  a  judgment  by  default  against  a  gar- 
nishee, unless   it   appear  that  the  judgment  is  unjust,  and  was 

obtained  without  his  fault  or  neglect 658  e 

COVENANT, 

is  not  sufficient  as  an  attachment  bond,  where  the  statute  requires  a 

bond  with  a  stated  penalty 125 

CREDIT, 

is  the  correlative  of  debt 544 

is  that  upon  which  attachment  operates  when  a  debtor  of  defendant 

is  garnished 544 

of  defendant,  sought  to   be   reached  by  garnishment,   must  be  both 

legally  and  equitably  due  him 602 

CREDITOR, 

who  is,  that  may  sue  by  attachment 12-26 

who  has  received  property  in  pledge  for  his  debt,  may  attach  without 

returning  the  pledge 35 

may  sue  any  one  or  more  of  several  debtors  by  attachment       ...      37  a 
first  attaching,  may  sue   second   attaching  creditor  for   proceeds   of 

attached  property 429 

attaching  goods  as  the  defendant's,  with  knowledge  that  another 
party  has  an  interest  therein,  is  bound  to  pay  such  party  his 
proportion  of  the  money  I'ecovered  under  the  attachment,  not- 
withstanding the  judgment  of  the  court  decreeing  the  whole  to 

the  plaintiff 529 

CREDITOR'S   BILL, 

can  it  be  maintained  by  an  attaching  creditor  ? 225 

CUSTODIA  LEGIS, 

property  in,  cannot  be  attached 251,  267 

CUSTODY  OF  ATTACHED  PROPERTY, 

must  be  continued  by  the  officer 290 

right  of  officer  to,  rests  upon  a  special  property  in  the  attached  effects       291 

what  diligence  in  preserving,  is  required  of  officer 292 

should  not  be  allowed  to  the  defendant 292  a 

right  of  officer  to,  is  lost  if  he  suiTer  the  attached  effects  to  be  inter- 
mingled   with    otiiers    of  like    kind    previously 

attached  by  another  officer 292  c 

is   not  lost   by   the   officer's   removing    attached 

effects  into  a  foreign  jurisdiction  for  safe-keeping    292  d 
is  not  lost  by  placing  the  effects  in  the  hand.s  of  an 

agent  or  servant  of  the  officer 292  e 

is  lost,  if  the  officer's  servant  or  agent  abandon 
the  property,  so  far  as  subsequent  attachers  and 
adverse  claimants  are  concerned      .     .     .      292  e,  360 


728 


INDEX. 


CUSTODY  OF  ATTACHED   rROPERTY  — coHr/»«e./.  section 

ullicer's  failure  to  keep,  \vliat  will  excuse 294 

what  will  not  excuse 295-306 

CUSTO:\[   OF  LONDON, 

is  the  origin  of  the  proceeding  by  attachment  in  the  United  States     .  1 

of  foreign  attachment,  defined 1 

differences  between  foreign  attachment  under  the  custom,  and  com- 
mon-law proceedings      4 

differences  between  the  same  and   the  proceeding  by  attachment  in 

the  United  States 5 


D. 

DAMAGES, 

unlicpiidated,  arising  ex  contractu,  will  sustain  attachment,  if  the  con- 
tract furnish  a  standard  by  which  they  may  be  ascertained      .     .   13-23 

but  not,  where  such  is  not  the  case 32-34 

what  may  be  recovered  in  suit  on  attachment  bond 175-182 

nominal,  only  can  be  recovered  by  one  officer  against  another,  for  the 
taking  of  attached  property  by  the  latter  from  the  former,  where 
the  former  is  not  liable  for  it  to  the  plaintiff  for  whom  he  at- 
tached it 268 

to  attached  property,   can  officers  be   sued  by  defendant   therefor, 

■while  the  attachment  is  pending  ? 306 

rule  of,  in  action  against  officer  for  failing  to  produce  property  to 

meet  execution 308 

against  officer,  for  failing  to  have  attached  property  forthcoming  on 

execution 309,  310 

claim  against  garnishee  for  unliquidated,  will  not  charge  him    .     .     .       548 

rule  of,  in  actions  for  malicious  attachment 745 

DAY, 

fractions  of,  considered  in  determining  pi'iority  of  right  among  attach- 
ing creditors 261 

■where  several  writs  are  served  on  the  same,  and  nothing  in  the  offi- 
cer's returns  shows  the  priority  among  them,  they  may  be  pre- 
sumed to  have  been  served  at  the  same  time 265 

DEATH, 

of  defendant,  when  it  discharges  sureties  in  a  delivery  bond      .     .     .    341  6 

effect  on  attachment 422 

suit  brought  after,  is  void 423 

of  garnishee,  after  his  answer,  arrests  all  proceedings  against  him      .  658  hh 
of  defendant,  before  judgment,  when  may  be  set  up  to  prevent  judg- 
ment against  garnishee 698 

DEBT, 

action  of,  is  foundation  of  attachment  by  the  custom  of  London     .     .  9 

nature  of,  for  which  attachment  may  be  obtained  in  this  country  .     .  13-23 

must  be  actual,  and  not  merely  possible  and  contingent 27  a 

not  due,  when  may  be  proceeded  on  by  attachment 28-33  a 

claimant  of,  where  the  debtor  has  been  garnished,  cannot  intervene 
in  the  attachment  suit  where  the  plaintiff  therein  has  abandoned 
all  claim  against  the  garnishee 460  a 


INDEX,  729 

'D:EBT  —  continued.  Section 

of  garnishee,  to   defendant,  effect  of  garnishment  upon  defendant's 

rights  in ^^2 

of  plaintiff  to  defendant,  plaintiff  may  attach  in  his  own  hands  .     .     .       543 

for  which  garnishee  may  be  charged 545-547 

to  an  administrator,  for   property  purchased   at  administrator's   sale 

cannot  be  attached  for  his  individual  debt 546 

of  garnishee,  must  be  payable  in  money 550 

must  be  absolutely  payable,  and  not  dependent  on  any 

contingency •       "Ol 

dependent  on  contingency,  what  is 552 

depending  on  condition   precedent  to  be  performed  by  defendant, 

garnishee  cannot  be  charged  for 553 

not  yet  payable,  may  be  attached 557 

but  it  must  be  a  certain  debt,  which  will  become  payable  upon  the 

lapse  of  time 559 

DEBTOR, 

of  a   decedent,   cannot  be   charged   as   garnishee,   in   a  proceeding 

against  the  decedent's  administrator 545  a 

DEBTORS, 

several,  any  one  or  more  may  be  proceeded  against  by  attachment, 

without  so  proceeding  against  the  others 37  a 

absent,  absconding,  concealed,  and  non-resident 39-68 

removing  their  property oJ-71 

fraudulently  disposing  of  their  property 72-77  a 

DECEDENT, 

debtor  of,  cannot  be  charged  as  garnishee,  in  a  proceeding  against 

,    the  decedent's  administrator 545  a 

DEFAULT, 

judgment  by,  against  garnishee,  effect  of 6o8  e 

how  set  aside 658  e 

may,  in  suit  by  defendant  against  garnishee,  be  shown 
by  parol  proof  to  have  been  for  the  same  debt  sued 

on 716 

DEFECTS, 

in   garnishment  process,  may  be  taken  advantage  of  by  motion  to 

quash,  or  by  plea  in  abatement "i^l  "> 

DEFENCE, 

garnishee  may  make  any,  against  the  garnishment,  which  he  might 

make  if  sued  by  defendant C72 

interposed  by  the  garnishee,  must  be  such  as  would  avail  in  an  action 

by  defendant  against  him "82 

where  attachment  is,  and  manner  of  pleading  it 699-723 

DEFENDANT, 

may,  in  the  United  States,  appear  and  defend  without  giving  special 

bail ;•••.•         ^ 

appearance  to  the  action  by,  when  sued  as  an  absconding  debtor,  is 

not  proof  that  he  had  not  absconded 53  a 

personally  served,  or  appearing  to  action,  makes  the  suit  mainly  one 

in  personam °' 


730  INDEX. 

DEFENDANT  —  coniinued.  Section 

by  appearing,  and  not  questioning  the  attachment  proceeding,  the 

attat'hment  will  be  valid,  (hough  the  allidavit  be  defective  ...  87 

appearant'C  of,  when  not  served,  to  move  for  a  dismissal  of  the  at- 
tachment for  -want  of  jurisdiction,   is  not   a  submission   to   the 

jurisdiction  .  • 112,  144 

appearance  by,  and  plea  to  the  merits,  waives  defects  in  the  prelimi- 
nary proceedings 112 

to  an  action  wrongly  brought,  is  not  an  appearance 

to  it  after  declaration  has  been  amended  ....    112  a 
giving  assent  to  a  levy  on  property  not  liable  to  attachment,  validates 

the  levy 195 

cannot  plead,  in  abatement  of  the  action,  that  the  attached  property 

was  not  his 196  a 

judgment  in  favor  of,  destroys  the  lien  of  an  attachment  .     .     .     .    228,413 
introduction  of  new,  or  substitution  of  another,  after  levy,  dissolves 

attachment  as  against  subsequent  attachers 287 

cannot  have  attachment  dissolved,  because  the  officer,  -with  plain- 
tiff's consent,  let  the  attached  property  pass  out  of  his  posses- 
sion     290 

should  not  be  allowed  to  retain  possession  of  attached  effects,  unless 

authorized  by  law 292  a 

should   not  be  appointed  agent  of  the  officer  to  keep  possession  of 

attached  effects 292  a 

use  of  attached  effects  by,  when  will  not  destroy  the  attachment  lien     292  a 

death  of,  when  it  discharges  sureties  in  delivery  bond 341  b 

appearance  by,  to  move  to  set  aside,  dissolve,  or  quash  the  attach- 
ment, is  it  an  appearance  to  the  action  ? ,.       414 

death  of,  effect  on  attachment 422 

before  suit  brought,  makes  the  suit  void 423 

when  he  may  recover  back  from  plaintiff  the  proceeds  of  attached 

property,  where  the  plaintiff 's  judgment  is  reversed       ....       430 
one  of  several,  cannot  be  summoned  as  garnishee  of  the  others     .      .    465  a 
may  be  garnished,  in  respect  of  money  due  from  him,  as  executor, 
to    him    individually,  where  the  law  allows  garnishment  of  an 

executor 465  h 

rights  of,  in  debt  of  garnishee  to  him,  how  affected  by  the  garnish- 
ment   542 

may  interpose  to  prevent  a  judgment  against  the  garnishee,  when       .    658  c 
death  of,  before  judgment  against  him  in  the  attachment  suit,  may  be 

set  up  to  prevent  judgment  against  garnishee 698 

DELIVERY  BOND, 

may  be  given  for  property  attached 327 

given  when  not  authorized  by  statute,  or  in  terms  variant  from  those 

prescribed,  is  good  as  a  common-law  bond 327  a 

may  be  taken  in  cases  of  garnishment 327  b 

no  set  form  of  words  necessary  to  constitute 328 

addition  to,  of  terms  not  required  by  statute,  does  not  invalidate  .     .       329 
difference  between  it  and  bailment  of  attached  property,  and  between 

it  and  bail-bond 330,  331 


INDEX.  731 

DELIVERY  BO'SD  —  cojitinued.  Section 

does  not  discharge  the  lien  of  the  attachment 331 

by  executing,  defendant  acknowledges  notice  of  suit 332 

cannot  be  given  by  any  but  one  authorized  by  statute 333 

when  given   by  a  person   other  than  defendant,  his  relations  to  the 

defendant •' 333  a 

calling  for  delivery  of  property  at  a  specified  place,  no  demand  neces- 
sary   334: 

when  given  for  the  delivery  of  property  within  a  stipulated  time  after 
judgment  for  plaintiff  in  the  attachment  suit,  no  order  that  the 
judgment  shall  be  a  lien  on  the  attached  property,  or  directing  a 
sale  of  the  property,  is  necessary  to  sustain  action  on  the  bond  .       331 

surety  in,  how  he  may  exonerate  himself 335 

demand  for  propeity  under,  is  not  necessary  where  the  defendant  has 

removed  the  property  out  of  the  jurisdiction  of  the  court  .     .     .     335  a 
signers  of,  cannot  object  that  it  is   not  their  deed,  because  it  was 

written  over  their  signatures  in  blank 336 

sureties  in,  not  responsible  where  they  signed  it  with  the  understand- 
ing that  others  were  to  sign  it  as  sureties  who  did  not  do  so   .     .       336 
obligors  in,  cannot  object  to  the  validity  of  the  bond,  because  they 

signed  it  as  principals,  when  the  statute  required  sureties .     .     .       336 

sureties  in,  may  move  to  quash  the  attachment,  semble 336  a 

given  by  one  having  a  lien  on  the  property,  his  lien  is  not  devested    .       337 

when  party  to,  may  be  made  liable 338 

what  will  not  discharge  obligors  in 339 

given  by  party  other  than  defendant,  claiming  to  be  the  owner  of  the 

property,  he  must  deliver  the  propei'ty,  and  then  claim  it  .  .  .  340 
liability  on,  is  fixed  by  final  judgment  against  the  defendant  .  .  .  340  a 
third  party  claiming  the  property  cannot  maintain  action  on  .  •  .  340  b 
obligors  in,  if  prevented  by  act  of  God,  are  excused  from  delivery  .  341 
if  obligors  in,  are,  through  the  instrumentality  of  the  attachment 
plaintiff,  prevented  from  delivering  the  property,  no  action  will 

lie  against  them 341  a 

sureties  in,  are  released  by  dissolution  of  the  attarhment     ....     341  b 
judgment  against  sureties  in,  cannot  be  rendered  after  tlie  attachment 

is  dissolved 341  b 

cannot  be  enforced,  where   delivery  of  the  property  has   been  made 

by  law  impossible 341  c 

measure  of  recovery  on 342 

one  joint  obligor  in,  may,  if  he  pay  the  whole  judgment  recovered  on 

the  bond,  demand  contribution  from  his  co-obligors       ....       343 
DEMAND, 

for  property  of  a   stranger   attached,  is  not  necessary  to  make  the 

officer  a  trespasser 197 

must  be  made,  for  entrance  into  a  store,  to  attach  property  therein, 

before  forcing  an  entrance 200 

must  be  made  on  attaching  officer,  on  execution,  for  attached  prop- 
erty, in  order  to  fix  his  liability  therefor 305 

on  sureties  in  delivery  bond,  not  necessary  when  the  proptrty  has 

been  removed  beyond  the  jurisdiction  of  the  court 335  a 

on  receiptor  of  attached  property,  when  necessary 373 


732  INDEX. 

DEMURRER.  Section 

to  declaration  will  not  lie,  wliere  the  cause  of  action  is  one  for  which 
attachment  may  not  he  issued,  nor  for  a  variance  between  the 

aHiclavit  and  attachment  and  the  complaint 36 

DEPUTY, 

of  a  clerk   of  court,  cannot  swear  his  principal  to  the  affidavit  for 

obtaining  an  attachment  in  his  court 91  « 

cannot  approve  the  attachment  bond  of  his  principal  in  such  case  .     .       120 
DEVISEE, 

of  real  estate   charged  with  a  legacy,  may  be   held  as  garnishee  of 

the  legatee  in  respect  of  the  legacy 500 

DILIGENCE, 

reasonable,  officer  bound  only  to,  in  making  a  levy 191a 

DISBURSING   OFFICER, 

of  government,  not  chargeable  as  garnishee,  in  respect  of  money  in 

his  hands  to  be  paid  to  defendant 512 

DISSOLUTION   OF   ATTACHMENT, 
I.  .-Is  between  Plaintiff  and  Defendant. 

is  not  produced  by  failure  of  officer  to  return  into  court  the  attach- 
ment bond,  if  the  bond  be  accidentally  destroyed,  or  if  no  blame 

be  chargeable  to  the  plaintiff 122 

is   produced  by  failure  of  officer  to  take  bond  before  the  issue  of  the 

writ ^'^'^ 

on   motion    for,  because  the  bond   for  attachment  was  executed  in 
plaintiff's  name   by  an  attorney  in  fact,  the  attorney's  authority 

is  presumed 1*''' 

is  not  produced  by  failure  of  each  of  two  sureties  in  the  attachment 
bond  justifying  in  an  amount  equal  to  that  sworn  to,  where  the 

bond  was  required  to  be  in  double  that  amount 134  h 

is  produced  by  failure  of  officer  to   make  return  on  or  before  return 

day 204 

is  not  produced  by  the  officer's  removing  the  attached  property,  for 

safe-keeping,  into  a  foreign  jurisdiction 292  a 

is  not  produced  by  a  wrong-doer's  taking  the  attached  property  out 

of  the  officer's  possession 297 

is  produced  by  defendant's  executing  bail-bond 317 

is  not  produced  by  defendant's  executing  delivery  bond 331 

discharges  the  obligation  of  sureties  in  delivery  bond 341  h 

may   be  procured  where  it  is  shown  that  the   attachment  was  im- 

providently  issued 400-405,407-409 

is  produced  by  final  judgment  for  defendant 413 

may  be  procured  by  motion 415 

motion  for,  what  it  should  present 415 

is  not  procurable  on  account  of  misrecital  in  the  writ  of  the  court  to 

which  it  is  retm-nable 416 

is  produced  by  issuing  the  writ  on  Sunday,  where  that  fact  appears 

on  the  face  of  the  writ 417 

on  motion  for,  what  the  defendant  cannot  show 418 

motion  for,  may  be  made  by  an  amicus  curice,  semble 418  a 

may  not  be  made  by  one  not  a  party  to  the  record      .     .       419 
may  be  made  by  surety  in  delivery  bond 419 


INDEX.        •  733 

DISSOLUTION  OF  ATTACHMENT  — coH/iww«Z.  Sectiou 

motion  for,  on  account  of  irregularities,  it  is  within  the  discretion  of 

the  court  to  entertain  it 420 

refused  by  the  court  on  motion,  may  be  made  at  final  hearing    .     .     .       421 

is  produced  by  death  of  defendant 422,423 

is  not  produced  by  bankruptcy  of  defendant 425 

as  to  surplus,  by  a  sale,  by  order  of  court,  of  attached  effects,  for  a 

greater  sum  than  that  needed  to  satisfy  the  debt 431 

II.  As  between  different  Attackers. 

is  not  produced,  in  favor  of  subsequent   attacher,  through  defect  in 

bond  of  prior  attacher 143 

is  produced,  as  against  subsequent  attacher,  by  failure  of  officer  to 

make  due  return  of  prior  attachment 262 

as    against    subsequent    attacher,    by    failure    of    prior 
attacher  to  obtain  judgment  and  execution,  and  duly 

charging  attached  property  therewith 262 

is  not  produced,  as  to  subsequent  attacher,  by  irregularities  in  pro- 
ceedings of  prior  attacher 262 

may  be   insisted   on  by  subsequent   attacher,  where  the  prior  attach- 
ment was  based  on  fraudulent  or  fi.  titioas  demands      .     .     .     274,  275 
is  produced  by  amendment  of  writ  of  prior  attacher,  by  striking  out 
the  name  of  one  of  two  defendants  ;  by  changing  the 
place  to  which  the  writ   is   made  returnable ;    or    by 
changing  or  increasing  the  demand  of  prior  attacher    .       282 
as  to  subsequent  attachers,  by  the  prior  attacher's  making 
a  settlement  of  all  accounts  with  defendant,  and  taking 
judgment  by  consent  for  a  balance   found,  where   the 
settlement  included  demands  not  sued  on       ....       283 
as  to  subsequent  attacher,  by  amending  the  writ  of  prior 
attacher,  increasing  the  amount,  though  the  mistake  in 

•  the  writ  was  merely  clerical 284 

is  not  produced,  as  to  subsequent  attacher,  by  a  mistake  in  taking 
judgment  for  too  much,  in  favor  of  prior  attacher, 
when  the  mistake  was  immediately  corrected ; 
nor  by  an  amendment  of  the  declaration  whereby 
the  amount  is  not  increased  and  no  new  demand 

is  introduced 285 

as  to  subsequent  attacher,  by  an  amendment  of  the 

given  name  of  a  defendant 287 

is  produced,  as  to  subsequent  attacher,  by  the  introduction  of  new 
defendants  into  the  writ  of  prior  attaclier;  and  by  referring  the 
action  and  all  demands  between  prior  attacher  and  the  defend- 
ant, where  new  demands  are  brought  into  the  reference     .     .    287,  288 

III.  As  between  diJJ'erent  Attaching  Officers. 

is  produced,  as  to  another  attaching  officer,  by  the  abandonment  of 

the  property  by  servant  of  the  first  attaching  officer      .   292  e,  359,  360 

IV.  Effect  of. 

discharges  the  obligation  of  sureties  in  a  delivery  bond 341  & 

bailee  of  attached  property,  where  he  has 
delivered  the  bailed  property  to  the 
owner   . 384 


734  INDEX. 

DISSOLUTION  OF  ATT AClUlE^iT  —  conilmied.  Section 

di.-(li:irgt'S  from  the  lion  of  the  jittachment  the  property  attached  .      .       411 

ends  the  special  ])roperty  of  ofKccr  in  attached  eif'ects 426 

requires  the  return  of  the  attached  property  to  the  defendant  or  the 

owner 426 

disdiarges  garnishee 411,  459  a 

DISTRIBUTION, 

of  avails   of  attached  property  among  simultaneous   attachers,  how 

made 263 

DISTRIBUTIVE   SHARE, 

of  personal  estate  in  hands  of  an  administrator,  not  attachable  before 

he  has  settled  his  account 498 

DOMICILE, 

absence   from,  may  be  so   prolonged   as  to  justify  the  party's  being 

sued  by  attachment  as  a  non-resident 57,  65 

Includes  residence,  with  an  intention  to  remain 58 

whether  the  residence  be  long  or  short 61 

DWELLING-HOUSE, 

may  not  be  entered,  against  owner's  will,  to  levy  an  attachment,  but 

may  be,  to  seize  property  of  a  stranger  secreted  there       .      .     .       200 

E. 

EFFECT   OF   ATTACHMENT, 

dates  from  time  of  its  service 221 

EQUITABLE   ASSIGNMENT, 

cf   property   in  garnishee's   hands,  will  prevent  its  attachment  for 

debt  of  assignor 527 

of  debt,  owing  by  garnishee,  will  protect  it  from  attachment  for  debt 

of  the  assignor COS,  604 

valid  by  the  law  of  the  assignor's  domicile,  will  be  sustained 

elsewhere 605 

notice  of,  should  be  given  to  debtor 606 

garnishee  receiving  notice  of,  should  state  it  in  his  answer,  607,  607  a 
will  protect  rights  of  assignee,  though  no   notice  be  given 

before  the  attachment,  if  it  be  given  before  judgment  .     .       608 
evidenced  by  writing,  may  be  by  delivery  of  the  writing  .     .       609 

what  will  and  what  will  not  constitute 610,  611 

not  due,  may  be  made ;  but  there  must  be  an  actual  debt, 

due  or  to  become  due 612,  613 

may  be  made  verbally 614 

good  faiih  of,  may  be  questioned 615 

made  after  garnishment  of  the  debtor,  does  not  deprive  the 

attaching  plaintiff  of  recourse  against  garnishee        .      .      .    615  a 
EQUITABLE   CLAIM, 

cannot  be  pleaded  by  garnishee  by  way  of  set-off  against  his  liability 

to  delendant 689 

EQUITY, 

will  not  interpose  to  reinstate  priority  in    attachment,  lost  through 

the  plaintiff's  want  of  regularity  or  legal  diligence 262 

nor  in  aid  of  garnishment 454 


INDEX. 


735 


EQUIVOCATION,  Section 

in  garnishee's  answer,  effect  of '^^'^ 

ERRORS, 

in  judicial  action,  cannot  be  questioned  collaterally 87  a 

EVASION, 

in  garnishee's  answer,  effect  of 633,  656- odo 

EVIDENCE, 

what,  may  be  given  against  garnishee's  answer 655 

EVIDENCES   OF   DEBT, 

when  authorized  to  be   attached,  include  only  such  as  are  complete 

and  perfect  in  themselves 244  c 

EXCUSE, 

what  is    sufficient,    for   an    officer's   not   having   attached   property 

forthcoming^to  answer  execution 294 

what  is  insufficient 295-803 

EXECUTION, 

can  be  had  only  against  the  property  attached,  where  defendant  was 

not  served  and  does  not  appear 5 

of  attachment,  rules  concerning 184-202 

property  exempt  from,  cannot  be  attached 244 

money  collected  by  a  sheriff  under,  cannot  be  levied  on       ....       251 
to  whom  to  be  delivered,  where  the  attaching  officer  has  gone  out  of 

office 806 

property  exempt  from,  garnishee  not  chargeable  for 480 

EXECUTOR, 

may  not  be  sued  as  such,  by  attachment,  unless  he  make  himself  per- 
sonally liable 81,  82 

property  in  hands  of,  cannot  be  attached  in  a  suit  against  a  residuary 

legatee  or  a  devisee 251 

where  by  law  sul)ject  to  garnishment,  may  be  garnished  as  such  in 

an  action  against  him  individually 465  b 

not  chargeable  as  garnishee,  in  respect  of  a  legacy,  except  where  he 

has  been  ordered  by  the  probate  court  to  pay  it 499 

EXEMPTION, 

does  not  apply  to  a  debt  owing  to  defendant   for  exempt  property 

sold  by  hiin 244  a 

must  be  claimed  by  defendant  at  the  time  of  levy 19G,  244  a 

cannot  be  claimed  after  judgment 244  a 

property   subject  to,  must  be   set  apart  by    defendant   from    other 

property  not  exempt 244  a 

if  applied   to   one   or  the   other  of  two   articles,   but   not   to   both, 
defendant  must  make  his  election  at  the  time  the  attachment  is 
made,  if  he  have  opportunity,  or  his  privilege  will  be  waived      .    244  a 
must  be  proved  by  party  claiming  it,  in  an  action  against  officer    .     .    244  a 
of  municipal  corporation  from  garnishment,  may  be  waived  by  it  .     .    516  a 
cannot  be  set  up  by  tbe  defendant      .     .     .    658  c 
from  execution  of  property  in  garnishee's  hands,  may  be  set  up  by 

defendant  to  prevent  judgment  against  garnishee 658  c 

EX  PARTE  ATTACHMENT  PROCEEDINGS, 

may  be  assailed  (•ollaterally  for  want  of  jurisdiction,  and  for  want  of 

jurisdiction  may  be  rejected  as  a  nullity 87  a 


736 


INDEX. 


EX   PARTE    ATTACIBIENT   PROCEEDINGS  — con<//iw«i  section 

if  witliont  jiiristliftion,  no  title  passes  l)y  their  instrumentality        .     87  b,  88 
if  witli  jurisdiction,    cannot  be  set  aside   on   account   of  errors   and 

irregularities 

EXPENSE,^ 

of  keeping  attached  property,  cannot  be  deducted  from  the  proceeds 

of  property  not  the  defendant's  . 
is    no   excuse   for   officer's    failure   to 
produce  the  property  on  execution  . 
how  and  by  whom  to  be  paid 
not   to    be    paid   by    defendant   when 
attachment  is  dissolved      ....       426 


89  & 


196  c 

302 
311 


F. 

FACTOR, 

having  privilege  on  consignment,  is  entitled  to  payment  of  his  claim 

before  the  property  can  be  attached  in  suit  against  the  owner      .        245 
may  maintain  replevin  in   such  case,   against   officer,  for  taking  the 

property 245 

property  consigned   to,  cannot   be  attached   for  his  debt,  though  he 

have  a  Hen  on  it 246 

a  term  used  in  some  States  in  regard  to  one  subjected  to  garnishment       451 
garnishment  of,  does  not  cut  off  his  power  of  sale  of  goods  on  which 

he  has  made  advances 453  a 

FACTORIZING  PROCESS, 

a  term  used  in  some  States  in  the  sense  of  garnishment  process    .     .       451 
FAILURE  OF   CONSIDERATION, 

may  be  pleaded  by  garnishee  against  his  liability  to  defendant .     .      .        679 
FOREIGN    CORPORATION, 

may  be  sued  by  attachment,  as  a  non-resident 79 

character  of,  as  such,  is  determined  by  the  place  where  its  charter 

was  granted 80 

may  not  be  garnished 478 

FORTHCOMING  BOND. 

(See  Delivery  Bond.) 
FRAUD, 

assignment  to  himself,  set   up  by  garnishee,  may  be  impeached  for, 

when ' " 523,  524 

in  title  to  property  in   the  hands   of  a  garnishee,  disclosed  by  his 
answer,  not  determinable  by  the  court  on  the  answer,  but  must 

be  referred  to  a  jury 659 

FRAUDULENT  ATTACHMENT, 

may  be  assailed  and  defeated  by  subsequent  attaching  creditor      .    273-275 

attacliing  creditor  injured  by,  may  maintain  action  for 276 

when   overturned,  when   brought  in  conflict  with  rights  of  third  per- 
sons, not  attachers 289 

FRAU DU LE N T   CON VE YANCE, 

of  property  afterwards  attached,  when  and  how  avoided  by  attach- 
ing officer  or  creditor 225 


1 


INDEX.  737 

FRAUDULENT  DISPOSITION   OF   PROPERTY,  Section 

when  a  jrroimd  of  attachment 72-77 

FRAUDULENT   TRANSFER, 

garnishee   holding   effects    of   defendant    under,    may   be    charged, 

tliough  defendant  have  no  cause  of  action  against  him  .     .     .    458,  464 
FREIGHT, 

due  on  property,  must  be  paid  before  the  property  can  be  attached  .       245 
FRESH   FISH, 

not  attachable 249 

G. 

GARNISHEE, 

intestate,  judgment  against  administrator  of,  is  not  entitled  to  prior- 
ity over  other  debts  of  intestate 226 

defendant's  property  in  hands  of,  cannot  be  levied  on 251 

so  called  because  he  is  garnished,  or  warned,  not  to  pay  to  defendant       451 
not  chargeable  for  debt  accruing  after  the  garnishment,  unless  statute 

expressly  authorize  it 451  a 

not  chargeable  on  account  oflocked  trunk  of  defendant  in  his  posses- 
sion, of  contents  unknown 451a 

cannot,  by  acceptance  or  Avaiver  of  garnishment  process,  authorize 
proceedings  against  him  as  garnishee,  where  the  law  requires  the 

process  to  be  personally  served  on  him 451  J 

corporation  cannot  be  charged  as  such,  on  the  basis  of  an  admission, 

by  its  attorney,  of  service  of  the  garnishment  process   ....    451  b 
effects  of  defendant  in  his  hands  are  effectually  attached  by  his  f^ar- 

nishment 453 

his  rights,  after  garnishment,  in  the  defendant's  effects  in  his  hands       453 

his  property  is  not  affected  by  the  garnishment 454 

prior  transactions  between  him  and  defendant,  not  affected  retroac- 
tively by  the  garnishment 454  a 

equities  between  him  and  defendant  cannot  be  settled  in  garnishment 

proceeding 457 

can  be  made  liable,  only  to  the  extent  of  his  liability  to  defendant, 

except  in  cases  of  fraud 453 

can  be  held,  only  so  long  as  plaintiff  has  a  right  to  enforce  his  demand 

against  defendant 459 

is  discharged  by  dissolution  of  attachment 459  a 

can  be  no  judgment  against,  till  there  is  judgment  against  defendant       460 

nor  unless  it  be  shown  affirmatively  that  he  is  liable 461 

not  to  be  placed   in   a  worse  condition  by  the  garnishment,  than  he 

would  be  in,  if  sued  by  defendant 462 

general  basis  of  his  liability        463 

instances   of  his  liability,  where  defendant  has   no  present  cause  of 

action  against  him 464 

not  liable  for  real  estate  of  defendant 465 

domestic  corporation  may  be 469 

in   such  case,  the   rules  as  to  liability  are  the  same  as  where  an  indi- 
vidual is  garnished 47I 

47 


738  INDEX. 

GAIINISHEF:  —  continued.  Section 

corporation  siiimnoned  as,  how  to  answer 472 

only  a  re>iilc'nt  of  London  can  be  luld  as,  under  tlie  custom     .     .     .       473 
a  non-residi'nt   of  a   State   cannot   be  lield  as,  unless  he  have  there 
property  of  the  defendant,  or  be  bound  to   pay  the  defendant 

money  or  deliver  him  goods  tliere 474,  475 

non-resident,  garnished,  should,  for  his   own   protection,  answer,  or 

judgment  hy  default  may  be  given 476 

one  of  several  joint  debtors  may  be,  though  the  others  are  non-resi- 
dents, where  all  are  garnished 477 

foreign  corporation  cannot  be,  uidess   it  has  agreed  to  be  sued  in  a 

State  other  than  that  in  which  it  was  formed 478 

a  corporation   chartered   by  several  States,  may  be  garnished  in  any 

of  them 479 

not  chargeable  for  personalty  which  is  exempt  from  execution       .     .       480 
for  c/io.ses  m  adion  of  defendant  in  his  hands      .      .      .        481 

property  of  defendant  must  be  in  actual  possession  of 482 

not  chargeable  for  property  which  he  did  not  know  to  be  defendant's, 

and  p.irted  with  before  he  knew  it  was  so 482 

cannot  be  charged  on  account,  of  constructive  possession      ....       483 
may  be  charged  on  account  of  money  collected  by  his  agent  for  de- 
fendant   484 

his  possession  of  defendant's   property  must  be  in  privity  of  contract 

and  of  interest  with  defendant 485-490 

bank  summoned  as,  not  cliargeable  on  account  of  money  deposited 
with  it  by  the  defendant  fl.s'  agent  for  others,  or  where  depo>ited 
by  him  individually,  though  it  was  the  money  of  his  principal, 
if  the    principal   notily  the  bank  that   it  was   his,    and    not   the 

agent's 491  a 

public  officer  cannot  be  charged  as,  in  respect  of  money  in  his  bands 

as  suih 4yo 

no  person  can  be  cliarged  as,  who  derives  his  authority  from  the  law, 

and  is  obliged  to  execute  it  according  to  law 494 

administrator   not   chargeable  as,  until  he  is  ordered  by  court  to  pay 

to  a  cre<!itor  of  the  estate 496,497 

where  by  statute  an  administrator  may  be,  a  distributive  share  can- 
not be  attaclied  in  his  hands  before  he  has  settled  his  account      .       498 

executor  not  chargeable  as,  in  respect  of  a  legacy 499 

guardian  not  chargeable  as 502 

sheriff  not   chargeable  as,  in  respect  of  money  in  his  hands  collected 

under  execution 503— 50o 

nor  in  respect  of  an  execution  in  his  hands 607 

but  may  be  as  to  a  surplus  of  money  over  what  is  necessary  to  satisfy 

the  execution 508 

clerks  of  courts  not  chargeable  as,  in  respect  of  moneys  in  their  hands 

in  their  official  capacity 509 

receivers,  trustees  of  courts,  and  trustees  accountable  to  courts,  not 

chargeable  as 509  a 

justices  of  the   peace,  receiving  money  collected  on  executions,  not 

chargeable  as 510 


INDEX.  739 


GARNISHEE  —  continued. 


Section 
trustees  of  insolvents  and  assignees  in  bankruptcy  not  chargeable  as       511 

disbursing  officers  not  chargeable  as 512 

public  agent,  not  being  an  officer,  may  be  held  as 513 

private  agent  having  money  which  he  was  authorized  to  pav  to  defend- 
ant, but  has  not  agreed  with  defendant  to  do  so,  is  not  charge- 
able as 514 

attorneys  at  law  may  be 515 

municipal  corporations  cannot  be 516 

a  State  or  its  auditor,  comptroller,  treasurer,  or  agent  cannot  be       .    516  a 
liability  of,  as  affected  by  previous  contracts  touching  the  defendant's 

property'  in  his  hands 517-520 

as  affected  by  assignments,  liens,  mortgages,  or  pledges   521-540 
to  charge  him  as  a  debtor  of  defendant,  the  defendant  must  have  a 

cause  of  action  against  him 541 

not  liable,  as  such,  for  a  debt  based  upon  an  illegal  consideration       .     541  a 
rights    of   defendant    against,    pending    the    garnishment,    how   far 

excluded 542 

plaintiff  may  be,  in  his  own  case 543 

can  be  charged  only  for  a  debt 544^  545 

debtor  of  a  decedent  cannot  be  charged  as,  in  a  proceeding  against 

the  decedent's  administrator 545  a 

there  must  be  privity  of  contract  and  interest 546 

the  debt  must  be   a  legal,  as  contradistinguished  from   an   equitable, 

one 547 

not  liable  on  account  of  a  claim  for  unliquidated  damages    ....       548 
under  a  contract  of  indemnity,  where  no  loss  has  occurred       549 

debt  of,  must  be  due  in  money '550 

must   be   absolutely  payable,  and  not   dependent   on   a  con- 
tingency        551 

contingent  debt,  what  is 551^  552 

not  chargeable,  where  something  remains  to  be  done  by  the  defend- 
ant before  he  could  recover  of  the  garnishee     .      .        553 
unless  the  amount  he  owes  the  defendant  be  shown  .    553  a 
is  chargeable  in  respect  of  a  debt  not  yet  due  and  payable  .      .     .    557-559 
any  one   of  several  joint  debtors  of  defendant   may  be   (  harged  as, 
but,  in   such   case,  payment  by  one  not  garnished  will  discharge 

garnishee 560 

one   of  several  joint   debtors   garnished,  may  avoid  liability  on   the 

ground  of  the  non-joinder 
of  the  others  ....  5G1 
all  of  whom  were  named 
in  the  writ,  but  part  not 
served,  may  be  (;harged  as  562 
answering  tiiat  time  is  want- 
ed to  ascertain  ihe  condi- 
tion of  the  fund,  or  the 
liability  of  the  <o-debtors 
not  summoned,  proceed- 
ings will  be  stajed      .     .       563 


740  INDEX. 

GARNISHEE  —  conilmied.  Section 

one   of  several  joint   debtors   garnished,  -where  the  others  reside  in 
a  foreign  country,  cannot  be  charged  in  respect  of  a  contract 

made  in  that  country 664 

answer  by  one  of  a  firm  which  has  been  garnished,  will   authorize  a 

judgment  against  all  the  partners 565 

several,  not  jointly  indebted,  neither  can  defend  against  his  liability, 

by  showing  tlie  non-liability  of  the  others 565  a 

liability  of,  as  affected  by  the  number  of  the   defendants   and   the 

number  of  his  creditors 566-572 

as  maker  of  an  unnegotiable  note 574-581 

as  maker  of  a  negotiable  note 582-592 

as  affected  by  previous  contracts  between  him  and  de- 
fendant     " 593-597 

not  bouml  to   set  up   Statute   of  Frauds  in   discharge  of  his  verbal 

promise 595 

where  indebted,  his  liability  is  not  varied  by  the  fact  that  his  debt  to 

defendant  is  payable  in  another  State  or  country 597 

liability  of,  as  affected  by  a  fraudulent  attempt  by  the  defendant  to 

defeat  the  payment  of  his  debts 598-601 

as  affected  by  an  equitable  assignment  of  the  debt         602-615  a 
as  affected  by  legal  proceedings  against  him  by  defend- 
ant for  the  recovery  of  the  debt 616-627 

answer  of,  must  be  by  him  in  person 628 

must   state    all    facts   necessary  to    enable  the   court  to   decide  his 

liability 629 

is  not  estopped  from  denying  liability,  by  any  previous  admissions  .  629  a 
should  state  every  fact  which  had  destroyed  his  relation  as  debtor  to 

defendant 630 

where  the  same  person  is,  in  several  suits,  he  should  bring  that  fact 

to  the  notice  of  the  court  in  his  answers  in  the  suits  after  the  first    630  a 
cannot  state  facts  in  his  answer,  which  change  the  terms  of  a  written 

contract 631 

if  not   indebted   to    defendant,   he   should   so  declare ;  if  he    be    in 
doubt,   he   should   state  the  facts,  and   leave  the  matter  to  the 

court 632 

should  avoid  evasion  or  equivocation  in  his  answer 633 

his  answer  should  be  full  and  explicit,  and  when  so  the  court  will 

protect  him  from  further  interrogatories 634,  635 

refusal  by,  to  answer  pertinent  interrogatories,  effect  of  .  .  636,  636  a 
answer  of,  need  not  conform  to  the  technical  rules  of  pleading       .     .       637 

if  as  good  as  he  can  make,  will  be  sufficient 638 

may  state  matters  not  of  his  own  knowledge 639 

may  be  required  to  make  statement  of  his  accounts  with  defendant  .  639  a 
may  be  required   to  answer  interrogatories  as  to  his  having  been  a 

party  to  a  fraudulent  sale 640 

may  have  the  correctness  of  an  interrogatory  determined  by  the  court  642 
extent  of  interrogatories  to,  is  in  the  discretion  of  the  court  .  .  .  642 
interrogatories   to,   must   be    confined   to   such    matters    as   are  the 

ground  of  his  liability 64S 


INDEX.  741 

GARNISHEE  —  continued.  Section 

will  be  protected  against  impertinent  and  vexatious  questions  .  .  .  644 
not  required  to  state  what  would  deprive  him  of  a  defence  against 

his  debt  to  defendant 645 

any  thing  showing  him  to   have  committed  a 

violation  of  law 646 

any  thing  tending  to   impair  or  impeach   his 

title  to  real  estate 647 

may  be   questioned  as  to  real  estate   of  defendant  held  by  him  in 
trust,  with  a  view  to  subject  the  rents  or  proceeds  thereof  to  the 

payment  of  defendant's  debts 648 

may,  at  his  option,  make  statements  of  others  a  part  of  his  answer     .       649 

may  amend  his  answer 650 

effect  to  be  given  to  his  answer 651-655 

construction  to  be  given  to  his  answer 656-658 

judgment  against  defendant  should  be  shown  in  the  record,  to  sustain 

that  against  garnishee 658  a 

judgment  against,  need  not  be  taken  at  the  same  time  as  that  against 

defendant 658  h 

death  of,  after  his  answer,  arrests  all  proceedings  against  him  .  .  .  658  bb 
defendant   may  show  ground  for   not    rendering   judgment   against 

garnishee 658  c 

should  have  a  fair  hearing  on  the  question  of  his  liability  ....  658  d 
permitting  judgment  against  him,  by  his  negligence,  is  without  relief  658  e 
in  default,  is  entitled  to  a  strict  observance  of  the  steps  prescribed  by 

law  as  preliminary  to  a  final  judgment  against  him 658/" 

judgment  on  answer  of,  rules  concerning 659 

extent  of  his  liability  is  determined  by  the  amount  in  his  bands,  not 

exceeding  amount  of  plaintiff's  judgment  against  defendant   .     .       660 
may   discharge   himself,    by   delivering   into   court   the  defendant's 

property  in  his  hands 661 

is  not  liable  for  costs,  where  he  does  not  assume  the  attitude  of  a 

litigant 662 

is  liable  for  costs  if  he  denies  indebtedness,  and  is  found  indebted     .       662 
cannot   be    charged   if  plaintiff  get   satisfaction    of  his  debt  other- 
wise   663 

his  liability  for  interest  pendente  lite 664-666 

is  liable  only  for  what  was  in  his  hands  when  garnished 667 

for  debitum  in  prcesenti,  solvendum  infuturo      ....    557,  668 
for  debt   uncertain  as  to  amount,  but  the  amount  of  which 

is  afterwards  made  certain 669 

his  liability,  as  existing  at  the  time  of  the  garnishment,  may  be  dis- 
charged by  subsequent  events 670 

when  and  where  chargeable  for  effects  of  defendant  coming  into  his 

hands  after  garnishment 671 

may  make  any  defence  he  could  against  suit  by  defendant    ....       672 
judgment  in  favor  of,  in  a  suit  brought  against  him  by  the  defendant 
before   the   garnishment,   is   conclusive    against   his    liability   as 

garnishee 672  a 

may  show  that  plaintiff's  claim  has  been  satisfied 673 


742 


INDEX. 


GARNISHEE  —  coniinued.  Section 

agroeinont  or  unik'rstandinjj;  bi-tweon  him  and   (.lufendant,  made  after 

ganiishmi'iit,  cannot  defeat  the  garnishment 674 

voluntary  payment  by,  of  his  debt  to  defendant,  after  garnishment, 

will  not  discharge  hira 674  a 

payment  by  agent  of,  after  the  garnishment,  but  with  no  knowledge 

of  it,  will  discharge  garnishee 674  a 

payment  by,  to  defendant,   after  garnishment,   is  voluntary,    unless 

made  under  compulsion  of  judicial  order  or  process       ....    674  a 
setting  up  payment  of  his  debt,  must  show  that  it  was  made  before 

the  garnishment 674  6 

payment  by,  to  defendant,  after  garnishment,  under  erroneous  suppo- 
sition that  the  garnishment  was  defective,  will  not  discharge  him    674  c 
alleged  payment  by,  to  defendant,  set  up   as  a  defence,  must  be.  a 
payment  in  fact,  and  not  a  contrivance  intended  to  be  a  payment 

or  not,  as  circumstances  might  require 674  d 

is  discharged   bv  a  payment  of  his   debt,  made   by  a  co-obligor  not 

garnished    '. 674  e 

payment  by,  to  defendant,  after  judgment  discharging  him,  and  before 
writ  of  error  sued  out,  is  a  good  defence,  though  that 

judgment  be  afterwards  reversed 674/" 

under  previous  garnishment  discharges  his  liability    .     .        675 
after  garnishment,  on   irregular   execution  in   favor   of 

defendant,  will  not  discharge  him 676 

paying  money,  under  an  order  of  court,  into  the  hands  of  the  sheriff, 

is  protected  against  both  plaintiff  and  defendant 676  a 

previous  voluntary   payment  by,  to  a   creditor  of  his   creditor,  will 

not  discharge  him 677 

may  plead  statute  of  limitation  against  his  liability  to  defendant  .  .  678 
may  plead  failure  of  consideration  of  his  debt  to  defendant  .  .  .  679 
if  discharged  from  his  contract  by  the  default  of  defendant,  he  cannot 

be  charged  as  his  garnishee 680 

when  and  where  he  may  set  up  equitable  defences 681 

defences  by,  must  be  such  as  would  avail  him   as  a  defence  in__an 

action  by  defendant  against  him 682 

cannot  set  up  a  defence  which  would  operate  a  fraud  on  defendant's 

creditors 682  a 

relying,  in  his  answer,  on  one  defence  against  his  liability,  cannot  on 

the  trial  set  up  another  and  repugnant  defence 682  h 

cannot  avoid  liability  by  showing   that  defendant's  money  came  into 

his  hands  through  a  transaction  in  violation  of  law 682  c 

may  plead  set-ofF  to  his  liability  to  defendant 683-688 

how  may  be  deprived  of  right  of  set-off 688  a 

cannot  avail  himself  of  an  equitable  claim  by  way  of  set-off  .  .  .  689 
may  deduct  any  damages  he  is  entitled  to  recover  of  the  defendant 

growing  out  of  the  same  transaction  or  contract 689  a 

is  entitled  to  benefit  of  recoupment 689  a 

■where   liable  on  account  of  defendant's   property  in   his  hands,    he 

cannot  plead  set-off  unless  he  has  a  lien  on  the  property  .     .     .       690 
his  relation  to  the  main  action 691-698 


INDEX.  743 

GARNISHEE  —  continued.  Section 

must  see  that  the  court  has  jurisdiction  of  both  the   defendant  and 

himself 692-696 

may  reverse  judgment  against  himself,  if  the  court  had  not  jurisdic- 
tion of  defendant 696 

what  he  may  not  do,  in  reference  to  the  main  action,  if  the  court  has 

jurisdiction  of  both  defendant  and  himself 697 

when  he  may  set  up  the  defendant's  death  in  bar  of  judgment  against 

himself ' 698 

if  obliged,  as  garnishee,  to  pay  his  debt,  shall  not  be  required  to  pay 

it  again  to  defendant 699 

if  sued  by  defendant,  may  plead  prior  garnishment  in  abatement  .      .       700 
prior  garnishment  of,  is  good  ground  for  suspending  proceedings  in 

defendant's  suit  against  him 701 

sued  by  the  defendant  after  his  garnishment,  when  he  may  plead  the 

garnishment  ptiis  darrein  continuance 702 

where  sued  by  defendant  in  one  court,  and  garnished  in  another,  the 

priority  of  the  proceedings  will  determine  the  right 702 

cannot,  when  sued  by  the  attachment  defendant,  plead  the  pending 
garnishment,  unless  it  acts  directly  on  himself,  and  not  interme- 
diately through  another 703 

garnishment  of,  is  no  defence  to   an  action   by  an  assignee  of  the 

debt 703  a 

when  may  plead  attachment  in  bar  of  interest  on  his  debt,  pendente 

lite  ' 704 

plea  by,  of  a  pending  attachment,  in  abatement,  what  it  must  show    .       705 
judgment  against,  and  satisfaction  thereof  by,  where  court  has  juris- 
diction, is  conclusive  against  parties  and  privies 706 

judgment  in  favor  of,  is  conclusive  against  the  plaintiff,  though  ob- 
tained by  fraud 706  a 

discharge  of,  is  no  bar  to  an  action  by  defendant 707 

judgment  against,  does  not  bar  defendant  from  recovering  more  from 

garnishee  than  he  was  charged  for 707 

satisfaction  by,  of  judgment  against  him,  is  necessary  to  constitute  a 

defence  to  an  action  by  the  defendant  against  him 708 

judgment  against,  is  no  defence  to  an  action  by  defendant,  where  the 

attaching  pLiintifF,  by  his  laches,  cannot  issue  execution  on  it      .       709 
payment  by,   of  judgment  against  him,  bars    action    by   defendant 

against  him   on   the  debt 
in  respect  of  which  he  was 

charged 710 

is  a  good  defence  in  favor 
of  one  collaterally  and 
contingently  bound  for 
the  attached  debt  .  .  .710a 
rules  concerning,  in  order 
to  making  it  a  defence 
against  an  action  by  the 
defendant 711 


744 


INDEX. 


GARNISHEE  —  coniimied.  Section 
payment  by,   of"  judgment  against  liiin,  to  be  sustained  as  a  defence, 
the  filets  necessary  thereto  must  appeal'  in  the  record  of  the  at- 
tachment suit 712 

not  responsible  for  the  i-eguhirit_\  of  the  jjroceedings  in  the  attach- 
ment suit 713 

to  sustain  attaclmient  as  a  defence,  there  must  be  no  neglect,  collu- 
sion, or  misrepresentation  on  his  jiart 714 

in  such  case  it  nmst  appear  that  the  debt  for  which  he  was  charged 

was  the  same  as  that  for  which  he  is  sued  by  defendant      .     .      .        715 
where   charged,  by  default,  without  answer,  he  may  show  by  parol 

proof  that  the  debt  was  the  same 716 

if,  before  judgment,  he  learn  of  an  assignment  of  his  debt,  ho  must 
make  it  known  to  the  court,   or  the  judgment  will  not  protect 

him 717 

should  be  notified  by  the  assignee  of  the  assignment  of  the  debt    .    718,  719 

recovery  against,  how  pleaded 722 

in  pleading  it,  he  is  not  bound  to  show  that  the  attaching  plaintiff  had 

a  sufficient  cause  of  action 723 

GARNISHMENT, 

has  the  effect  to  place  the  property  in  the  garnishee's  hands  in  the 

custody  of  the  law,  so  that  it  cannot  be  taken  from  him  by  levy  .       251 

origin  and  meaning  of  the  term 451 

is  a  purely  statutory  proceeding,  and  cannot  be  pushed  beyond  the 

statutory  authority 451  a 

does  not  reach   debt  accruing  after  garnishee  is   summoned,  unless 

expressly  authorized  by  statute 451  a 

rests  wholly  upon  judicial  process,  and  cannot  be  aided  by  volunteered 

acts  of  garnishee 451  h 

after  the  return  day  of  the  writ,  is  of  no  validity 451  b 

is  a  process,  and  not  a  pleading,  and  defects  in  are  the  subject  of  a 

motion  to  quash,  or  a  plea  in  abatement    ........    451  c 

officer  must  make  return  of,  or  the  jiroceeding  will  fail 451  (i 

is  in  the  nature  of  a  proceeding  in  rem 452 

is  a  suit 452 

effect  of 453,  453  a 

of  a  party  having  choses  in  action  of  the  defendant  in  bis  hands,  does 

not  prevent  his  suing  parties  liable  thereon 453  a 

cannot  be  extended  beyond  reaching  the  defendant's  property  in  the 

hands  of  garnishee 453  b 

creates  no  lien  on  the  estate  of  I  he  garnishee 453  6 

cannot  be  supplemented  by  injunction,  or  other  proceeding  in  equity       454 
can  have  no  retroactive  effect,  so  as  to  affect  prior  transactions  be- 
tween garnishee  and  defendant 454  a 

can  have  no  effect  to  overthrow  trusts 454  b 

attachments  by,  take  precedence  in  order  of  service 455 

is  a  legal  and  not  an  equitable  proceeding 457 

does  not  confer  any  greater  rights  against  garnishee  than  defendant  has       458 
effect  of,  continues  only  so  long  as  plaintiff  has  a  right  to  enforce  his 

claim  against  defendant 459 


INDEX.  745 

GARNISHMENT  —  continued.  Section 

cannot  have  the  effect  of  placing  the  garnishee  in  a  worse  condition 

than  he  would  he  in,  if  he  were  sued  by  defendant 462 

is  a  proceeding  against  third  persons,  and  cannot  be  used  against  par- 
ties, where  such  use  is,  in  effect,  a  garnishment  of  the  defendant   465  a 

of  corporation,  how  effected 470 

of  a  firm,  by  its  partnership  name,  without  the  names  of  the  individual 

members,  charges  no  member  of  it 564  a 

cannot  have  the  effect  of  changing  the  nature  of  a  contract  between 
the  garnishee  and  the  defendant,  or  of  preventing  the  garnishee 
from  performing  a  contract  with  third  persons     .     .     .      517,  593,  594 

by  plaintiff,  of  himself,  to  reach  a  debt  he  owes  defendant,  cannot  be 
pleaded  by  him  in  abatement  or  in  bar  of  a  writ  by  the  latter 

against  him 703  h 

GRASS, 

growing  crop  of,  not  attachable 249 

GREEN   FRUITS, 

not  attachable 249 

GUARDIAN, 

of  infant  or  insane  person,  not  liable  to  garnishment,  on  account  of 

property  of  his  ward 502 


H. 

HEIRS, 

may  not  be  sued  as  such  by  attachment 61 

HUSBAND, 

interest  of,  in  wife's  choses  in  action,  is  it  attachable  ? 247 

I. 

ILLEGAL   CONSIDERATION, 

garnishee  not  chargeable  in  respect  of  debt  based  on 541  a 

IMPORTER, 

creditor  of,  cannot  attach  goods  of,  held  by  a  collector  of  the  revenue 

for  the  duties  thereon 251 

IMPROVIDENT  ATTACHMENT, 

what  is 397 

may  be  contested  by  defendant 398-405 

contest  of,  should  precede  appearance  and  plea  to  the  action  .  .  .  406 
when  vacated,  another  attachment  on  same  ground  cannot  be  sustained  406  a 
plea  in  abatement  to  affidavit  for,  rules  concerning 407-410 

INCREASE   OF   DEMAND, 

in  attachment  suit,  will  dissolve  attachment,   as  against  subsequent 

attachers 282 

INDEMNITY, 

officer  ought  not  to  levy  attachment  without,  where  there  is  danger  of 

his  committing  a  trespass 189 

to  be  entitled  to,  officer  nmst  notify  plaintiff  to  give  it 189 

may  be  demanded  before  officer  sells  the  property 189 


746  INDEX. 

INDEMNITY  —  continued.  Section 

rofiised  by  some  of  several  attaoliers,  and  given  by  otliers,  the  former, 
though  prior  in  levy  to  the  latter,  cannot  claim  the  avails  of  the 

property 189 

given  by  a  jjlaintifF  to  an  officer,  with  knowledge  that  the  property  is 
claimed    by   another   than   the    defendant,   makes    the   plaintiff 

responsible  for  the  officer's  acts 189 

contract  of,  garnishee  not  chargeable  in  respect  of,  where  no  loss  has 

occurred '^4:9 

aliter,  where  loss  has  occurred,  and  the  contract  furnishes  a  standard 
by  which  the  amount  of  the  liability   can   be  ascertained   and 

fixed 549 

INDORSER, 

of  a  promissory  note  may  be  proceeded  against  by  attachment       .     .         31 
INFANT, 

guardian  of,  not  subject  to  garnishment  in  respect  of  property  of,  in 

his  hands 502 

INHABITANT, 

defined 59 

INJUNCTION, 

cannot  be  resorted  to  in  aid  of  garnishment 454 

INSOLVENTS, 

trustees  of,  not  chargeable  as  garnishees »     .     .     .       511 

INSURABLE   INTEREST, 

an  officer  has  in  personal  property  attached  by  him 291 

INSURANCE   COMPANY, 

may  be  charged  as  garnishee,  in  respect  of  a  loss  under  a  policy 

issued  by  it 549 

INTEREST, 

garnishee's  liability  for 664-666,  704 

INTERMIXTURE, 

of  goods,  effect  of  upon  rights  of  owners 199 

effect  of  upon  special  property  of  officer 292  c 

(See  Confusion  of  Goods.) 
INTERPLEADER, 

does  not  lie,  where  a  debtor  is  garnished,  and  is  afterwards   sued  by 

his  creditor  before  he  is  charged  as  garnishee 700 

INTERROGATORIES, 

to  garnishee,  not  allowed,  after  he  has  fully  answered 635 

can  garnishee  be  charged  for  not  answering  ? 636 

tending  to  show  garnishee  to  have  been  a  party  to  a  fraudulent  sale, 

must  be  answered 640 

limit  to,  is  in  the  discretion  of  the  court 641 

must  be  confined  to  such  matters  as  are  the  ground  of  garnishee's 

liability 642 

impertinent  and  vexatious,  not  allowed 643,  658  d 

IRREGULARITY, 

in  judicial  action,  cannot  be  questioned  collaterally 87  a 

in  issue  of  writ,  will  not  prevent  officer's  protecting  himself  by  it,  nor 

justify  him  in  omitting  to  execute  it 185 


INDEX.  747 

IRREGULARITY  —  continued.  Section 

in  proceedings  of  an   attaching  creditor,  cannot  be  taken  advantage 

of  by  other  attachers 262,  273 

in  the  attachment  suit,  cannot  be  set  up  as  a  defence  by  a  trespasser, 

sued  by  an  officer  for  violating  his  possession  of  attached  property       291 

party  who  causes  attachment  to  issue  is  responsible  for,  and  if  attach- 
ment is  set  aside  for,  he  is  a  trespasser  ab  initio 411  a 

in  the  judgment  against  defendant,  cannot  be  taken  advantage  of  by 

garnishee ""' 

ISSUES   AND  PROFITS, 

of  real   estate,  cannot  be  taken  by  an   attaching  "officer  through  his 

attachment 239 

J. 

JOINT   CREDITORS, 

of  garnishee,  not  partners,  interest  of  either  in  his  debt  to  them  may 

be  attached  in  a  suit  against  one  of  them  separately     ....       572 
JOINT   DEBTORS, 

one  of,  may  be  garnished,  and  subjected  to  a  judgment  for  the  whole 
of  their  debt  to  defendant,  where  they  are  jointly  and  severally 

liable 560 

payment  of  debt  by  one  of,  under  garnishment,  is  a  good  defence  for 

all  against  a  suit  by  the  defendant  on  that  debt 710 

JOINT   INTEREST, 

in  real  estate,  may  be  attached  in  suit  against  one  joint  owner       .     .       241 

and  so  as  to  personalty 248 

JUDGMENT, 

against  defendant,  where  he  is  served,  and  his  property  is  attached, 

is  in  personam 5 

where  he  is  not  served,  but  is  notified  by  publica- 
tion, and  does  not  appear,  affects  only  the 
property  attached,  and  cannot  be  the  founda- 
tion of  an  action,  nor  be  for  a  greater  amount 
than  that  for  which  the  attachment  issued,  nor 
for  any  other  cause  of  action  than  that  stated 

in  the  publication 5 

in  a  suit  on  a  debt  not  due,  must  not  be  taken  before  the  maturity  of 

the  demand 33  a 

may  be  sued  on  by  attachment,  in  the  same  court  in  which  it  was  ren- 
dered, though  execution  might  issue  thereon 35  a 

supersedes  the  attachment,  and  after  its  rendition  no  action  can  be 

taken  under  the  latter 191  ^^ 

for  plaintiff,  merges  the  lien  of  the  attachment 2)ii  a 

against  adn)inistrator  of  garnishee,  is  not  entitled  to  priority  over 

other  debts  of  the  intestate 226,  453  & 

which  the  attached  property  must  answer,  is  that  which  plaintifiT  may 

ultimately  recover 227  a 

against  defendant,  must  bo  obtained,  to  entitle  plaintiff  to  any  benefit 

from  attachment 228,  262 


748  INDEX. 

JUDGMENT  —  conihwol  Section 

in  favor  of  defendant,  destroys  tlic  Hlmi  of  the  attachment       .     .     .  228,  413 
confession  of,  by  defendant,  before  the  time   when   the  action  would 
be   regularly  triable,  dissolves   plaintiff's  attachment,  as  against 

subsequent  attachers 262 

taken  for  claims  not  recoverable  under  the  declaration,  dissolves  the 

attachment  as  against  subsequent  attachers 282,  283 

taken  by  mistake   for   more  than  the  plaintiff  is  entitled  to,  will  not 

dissolve  tl)e  attachment 285 

for  plaintiff,  reversal  of,  not  on  the  merits,  does  not  entitle  defendant 
to  recover  from  plaintiff  the  proceeds  of  property  sold,  if  plaintiff 

prosecuted  his  suit  in  good  faith 430 

cannot  be  taken  upon  mere  attachment  of  property,  without  service 

upon,  or  notice  to,  or  appearance  by,  defendant 436 

without  service  on  defendant,  or  attachment  of  property,  is  void   .      .  5,  449 
without    service,    and    upon   publication,    can   be  for  no  more  than 

amount  sworn  to,  interest,  and  costs 449  a 

against  garnishee,  cannot  be  rendered,  until  there  is  judgment  against 

defendant 460 

remaining  oF  record  in  a  court,  caimot  be  attached  by  garnishing  the 

clerk  of  the  court 509 

against  garnishee,  on  account  of  a  debt,  bars  action  against  him  by  an 
assignee  of  the  debt,  whose  title  thereto  was  tried  in  the  attach- 
ment suit,  and  adjudged  invalid 530 

against  defendant,  should  be   shown   in  the   record,  to   sustain  that 

against  garnishee 658  a 

against  garnishee,  need  not  be  taken  at  the  same  time  as  that  against 

defendant 658  6 

after  his  death,  is  erroneous 658  bb 

permitted   by   his  negligence,   cannot   be  relieved 

against 658  c 

when  defendant  may  interpose  to  prevent      .     .     .    658  c 

without  fair  hearing,  will  be  set  aside 658  d 

by  default,  rules  concerning 658  e 

on  his  answer,  rules  concerning 659 

in  favor  of  a  defendant  who  has  been  garnished,  is  conclusive  against 
his  liability  as  garnishee  in  a  garnishment  which  took  place  after 
the  institution  of  the  suit  in  which  the  judgment  was  ren- 
dered      672  a 

against  garnishee,  by  court  having  jurisdiction,  and  satisfaction  thereof 
by  him,  is  complete  defence  to  a  subsequent  action  by  defendant 
against  garnishee  for  what  the  latter  was  compelled  to  pay     .     .       706 
in  favor  of  garnishee,  is  conclusive  against  plaintiff,  though  obtained 

by  fraud 706  a 

of  discharge  of  garnishee,  does  not  bar  an  action  by  defendant      .      .       707 
in  favor  of  garnishee  in  one   attachment  suit,  does  not  preclude  his 
being  charged  in  another,  nor  preclude  defendant  from  claiming 
more  in  his  action  than  the  garnishee  was  charged  for         .     .     .       707 
against  garnishee,  without  satisfaction  or  execution,  does  not  bar  an 

action  by  defendant  against  him 708 


INDEX. 


749 


JUBGMEliiT  —  continued.  _  Section 

against  garnishee,  put  by  plaintiff's  laches  in  a  state  of  suspension,  so 
that  execution  cannot  issue  on  it,  and  it  could  not 
be  revived  by  acire  facias,  is  no  defence  to  an 
action  by  defendant  against  the  garnishee       .     .       709 
amount  paid  under,  bars  action  by  the  defendant  .        710 
payment  under,  by  garnishee,  rules  concerning      .       711 
not  conclusive,   if  there  be  neglect,  collusion,   or 

misrepresentation  on  his  part 714 

on  a  reference,  will  protect  him 714 

not  available  to  him  as  a  defence,  unless  it  appear 
that  it  was  for  the  same  debt  he  is  sued  for  by 

the  defendant 715 

by  default,  may  be   shown  by  parol  proof  to  have 
been  on  account  of  the  same  debt,  for  which  the 

defendant  sues  him 716 

how  to  be  pleaded 720,  721 

JUDGMENT  DEBTOR, 

may  be  garnished b^z-b^^ 

JURISDICTION, 

defined 85 

general  and  special,  defined "^ 

acts  through  process  and  modes  of  procedure 85 

general,  presumed  to  have  been  lawfully  exercised 85 

special,  facts  conferring,  must  appear  in  the  record 85,  90 

what  is  exercise  of "b 

want  of,  may  be  shown  in  defence 87  a 

by  attachment,  in  ex  parte  cases,  may  be  collaterally  impeached       87  h-89  a 
when  and  to  what  extent  garnishee  may  and  should  inquire  into     .    691-696 
JUROR, 

money  due  to,  for  his  services,  not  attachable 493,  516 

JUSTICE   OF   THE   PEACE, 

not  subject  to   garnishment  in  respect  of  money  received  by  him  on 

execution 

JUSTIFICATION, 

of  officer  in  levying   attachment,  is  complete  if  the  writ  be  in  legal 

form,  and  issued  out  of  a  court  having  competent  jurisdiction      .        185 


K. 

KEEPER  OF   ATTACHED   PROPERTY, 

defendant  may  not  be 428 

defendant's  wife  may  be,  when 4-8 

his  possession  is  that  of  the  officer 4dl 

if  he  abandon  it,  the  lien  of  the  atta<hinent  is  lost  as  against  adverse 

claimants,  or  another  attachment 431 

what  vigilance  by,  in  the  custody  of  the  property,  is  necessary      .     .  432 


510 


750  INDEX. 


L. 

LEGACY ,  Section 

not  attac'liablc  in  hands  of  executor 499 

but  where  made  a  charge  on  real  estate,  the  devisee  may  be  garnished 

in  respect  cjf  it 500 

when,  by  express  law,  made  attachable,  is  not  such  a  contingent  lia- 
bility as  will  prevent  its  being  attached 501 

LEGAL   FROCEEDLVCiS, 

by  defendant  against  garnishee,  effect  of,  on  garnishee's  liability       616-627 
LESSEE, 

of  personal  property,  interest  of,  may  be  attached 245 

LESSOR, 

of  personal  property,  interest  of,  not  attachable 245 

LEVY, 

of  attachment,  cannot  be  made  until  the  writ  is  in  the  officer's  hands      183  a 
issued   by  an  officer  having  no  legal  power  to  issue  it 

is  void,  and  will  not  protect  the  officer       ....        184 
under  a  writ  so  defective  that  it  is  void,  cannot  be  made  effective  by 
amendment,  so  as  to  cut  off  rights  of  third  parties  acquired  after 

the  levy 184  a 

made  on  Sunday,  is  valid  unless  prohibited  by  law 187 

made  on  Christmas,  is  l.iwlul 187 

may  be  made  at  any  time  prior  to  the  return  day  of  the  writ,  or  prior 

to  its  actual  return  before  that  day 187  a 

made   after   return  day,  is  void  as  against   a  third  party  claiming  the 

propeity 187  b 

officer  is  bound  to  make,  on  any  property  of  the  defendant  which  he 

can  find        188 

but  not  without  indemnity,  where  there  is  danger  of  the  officer's  com- 
mitting a  ti'espass 189 

officer  is  biund  tu  make,  on  sufficient  property,  if  found        ....        190 
officer  nut  bound   for  deficiency  in,  when  caused  by  a  mistake  in  the 

writ  as  to  amount  of  claim 190 

officer  bound  oidy  to  reasonable  diligence  in  making 191a 

continued  with  no  unnecessary  delay,  is  to  be  treated  as  one  act    .     .       192 

effected  by  unLiwIul  or  fraudulent  means,  is  void 193 

must  be  made  n>  confurmity  to  law,  or  no  lien  is  created      ....       194 

must  not  bt;  made  on  property  not  liable  to  attachment 195 

on  property  not   the  delendant's,  makes  the  officer  and   the   plaintiff 

trespas^e^s 196 

when  made  under  several  attachments,  on  the  same  property,  not  the 
defendant's,  the   owner  of  the   property   cannot  sue  the  officer 

wiio  levied  the  last  attachment 196  a 

what  will  amount  to,  lor  which  trespass  will  lie 197 

officer  may  enter  store  by  lorce  to  effect 200 

but  not  a  dwelling-house,  except   to  reach  property  of  a   stranger 

secreted  there 200 

for  a  greater  amount  of  pro[)erty  than  is  requiied  to  meet  the  attach- 
ment, does  not  make  the  officer  a  trespasser,  unless  he  act  op- 
pressively     201 


INDEX.  751 

LEVY  —  continued.  Section 

abandonment  of,  invalidates  the  attachnoent 202,  257,  290 

is  necessary  to  constitute  an  attachment 221 

effect  of 222-224 

cannot  be  made  under  the  attachment,  after  judgment 224  a 

first,  is  entitled  to  priority  of  satisfaction 255 

■what  will  constitute 255  a-2bl 

on  heavy  and  unmanageable  articles,  how  made 258 

on  stock  in  a  corporation,  how  made 259 

LIEN, 

on  attached  property,  is  not  created  by  a  levy  not  made  in  conformity 

to  law 194 

existing   when   the  property  is  attached,   will 

prevail  over  the  attachment 223 

is  created  by  levy  of  the  attachment  ....       224 
of  attachment,  is,  after  judgment  for  plaintiff,  merged  in  that  of  the 

judgment 224  a 

enables  the  plaintiff  to  resist  fraudulent  conveyances 

and  incumbrances  of  attached  property    ....       225 
extends  only  to  effects  attached,  and  does  not  reach, 

constructively,  the  property  of  the  garnishee     .    226,454 
is  commensurate  with  the  judgment  recovert'd,  though 
it  be  greater  than  the  amount  for  which  the  attach- 
ment was  obtained 227 

extends  to  judgment  ultimately  recovered  ....  227  a 
is  of  no  value,  unless  plaintiff  obtain  judgment  .  .  .  228 
in  favor  of  plaintitf,  but  not  of  the  attaching  officer,  is 

imposed  by  the  attachment  of  real  estate  .  .  239,  240 
takes  effect,  only  when  the  writ  is  served  .  221,  263,  290 
is  lost,  as  against  subsequent  attachers,  by  plaintiff 
taking  confession  of  judgment  before  the  time 
when  the  action  would  be  regularly  triable,  or  by 
trial  before  return  day  of  the  writ,  or  by  taking 
the  attached  property,  by  agreement  with  defend- 
ant, in  satisfaction  of  his  claim,  and  discontinuing 

his  suit 262 

is  lost,  by  officer's  permitting  the  attached  property 
to  remain  in  defendant's  possession,  unless  author- 
ized by  law 292  a 

on  garnishee's  estate,  is  not  created  by  garnishment    .       454 

definition  of 532 

if  garnishee  have,  on  property  in  his  hands,  the  property  cannot  be 

taken 533 

must  exist,  however,  as  distinguished  from  mere  possession      .      .      .       536 
is  relinquished,  if  the  pledgee  attach  the  pledged  property   ....       540 
LIMITATION, 

statute    of,  may  be  pleaded  by  garnishee   against   his  liability  to  de- 
fendant       678 

LOCKED  TRUNKS  OR  BOXES, 

of  defendant,  of  unknown  contents,  garnishee  not  chargeable  on  ac- 
count of  his  possession  of  them     451a 


752  INDEX. 

LUNATIC,  Section 

property  of,  in  bands  of  guardian,  not  attacliable 251,602 

M. 

MAIN   ACTION, 

garnishee's  relation  to 691-698 

MALICIOUS   ATTACHMENT, 

action  for,  not  affected  by  the  execution  of  an  attachment  bond    .     .        154 

rules  governing 724-745 

IMALICIOUS   PROSECUTION, 

attachment  will  not  lie  in  action  for 10 

MANUFACTURE, 

goods  in  process  of,  not  attachable 250 

person  in  possession  of,  may  be  charged  as  gar- 
nishee in  respect  of 464 

MASTER  IN   CHANCERY, 

may  be  charged  as  garnishee,  in  respect  of  money  which  he  has  been 

ordered  to  pay  to  defendant,  but  not  before 509  a 

MISRECITAL, 

in  attachment  bond,  of  the  term  of  the  court  to  which  the  attachment 

is  returnable,  does  not  vitiate  the  bond  .     .     .       127 
of  the  amount  sworn  to,   does  not  vitiate  the 

bond 142 

in  the  writ,  of  the  court  to  which  it  is  returnable,  is  no  ground  for 

dissolving  attachment 416 

MONEY, 

may  be  attached,  and  taken  from  the  defendant's  possession      .     .     .       244 
in  the  hands  of  an  attorney  at  law,  paid  to  him  for  a  client,  cannot  be 

levied  on  in  an  action  against  the  client 246 

in  custodia  legis,  not  attachable 251 

collected  by  an  officer  under  execution,  cannot  be  levied   on  as  the 

property  of  the  execution  plaintiff 251 

paid  into  the  hands  of  a  clerk  of  court,  on  a  judgment,  or  paid  into 

court,  is  not  attachable 251 

MONEY   COUNTS, 

what  may  be  given  in  evidence  under 286 

MORTGAGE, 

personal  property  in  garnishee's   hands,  subject  to,  mortgagee  not 

liable  as  garnishee 539 

MORTGAGEE, 

of  personalty,  may  waive  his  rights  as  such,  and  attach  the  mortgaged 

property 35 

of  real  estate,  has  not  an  attachable  interest  in  the  property      .     .     .       235 
of  personal  property,  cannot  be  held  as  garnishee  of  mortgagor     .     .       539 
MOTION   TO   DISSOLVE,   SET  ASIDE,   OR   QUASH  ATTACH- 
MENT, 
will  lie,  where  the  cause  of  action  does  not  authorize  attachment    .     36,  414 

for  defects  in  affidavit,  when  may  be  resorted  to 112 

is  in  the  nature  of  a  plea  in  abatement .     .     .       112 
must  precede  plea  to  the  merits 112,  414,  421 


INDEX.  753 

MOTION  TO  DISSOLVE,  ETC.  —  confmued.  Section 

effect  of,  as  an  appearance  to  the  action 112,  414 

is  a  submission  to  the  jurisdiction,  if  the  defendant  combine  with  it 
a  motion  to  review  and  set  aside  the  judgment,  or  if  he  have  the 
case  put  at  the  foot  of  the  docket,  or  take  issue  and  go  to  trial 

on  the  defective  affidavit 112 

may    be  made  where   by  law   a  cautionary  bond   is  required,   and 

none  was  given  before  issuing  the  attachment 115 

is  based  on  defects  apparent  on  the  face  of  the  proceedings      .     .     .  415 

what  may  be  shown  upon 415,  418 

may  be  made  by  sureties  in  a  delivery  bond 336  a,  419 

what  cannot  be  shown  under 418 

may  be  made  by  amicus  curice,  semble 418  a 

cannot  be  made  by  one  not  a  party  to  the  record 419 

the  entertainment  of,  for  irregLdarities,  is  within  the  discretion  of  the 
court,  and  a  refusal  by  the  court  to  entertain  it  is  not  control- 
lable by  mandamus,  or  revisable  on  error 420 

judgment  on,  quashing  the  writ,  may  be  examined  on  error ....  420 

reasons  in  support  of,  must  be  spread  on  the  record 420 

where  the  attachment  was  sued  out  on  a  cause  of  action  not  author- 
izing it,  and  the  court  refuses  to  dismiss  the  suit,  the  appellate 
court  will  review  its  action,  and  itself  exercise  the  remedy      .     .  420 
overruled  by  the  court,  does  not  preclude  dissolution  of  the  attach- 
ment on  final  hearing 421 

may  be  made  on  account  of  defects  in  the  garnishment  proceedings    .  451  d 
MUNICIPAL   CORPORATION, 

cannot  be  garnished 516 

taxes  due  to,  cannot  be  attached 516 

exemption  of,  from  garnishment,  may  be  waived  by  it,  semhle  .     ,     .  516  b 

cannot  be  set  up  by  defendant 658  c 

N. 
NEGOTIABLE  NOTE, 

maker  of,  cannot  be  garnished  in  action  against  payee,  under 
attachment  served  before  maturity,  unless  before  rendition  of 
the  judgment  the  note  had  become  due  and  was  then   still   the 

property  of  the  payee 582-588 

NON   COMPOS   MENTIS, 

property  of  one  judicially  found  to  be  so,  is  not  attachable  ....       251 
NON-JOINDER, 

in   garnishment,    of  some   of    several   partners,    effect    upon    those 

garnished 561-564 

NON-RESIDENT, 

may  sue  by  attachment 11 

when  may  be  proceeded  against  by  attachment 57-67 

property   of,    may  be   attached,  though   it  would    be    exempt   from 

attachment  if  he  were  a  resident 244  a 

cannot  be  garnished,  unless  he  have  property  of  defendant  in  his 
possession,  or  be  bound  to  pay  him  money,  in  the  State  where 

garnished 474,  475 

48 


754  INDEX. 

NON-RESIDENT  —  confiuned.  Section 

when  garnitiheii,  should  answer,  to  avoiil  judgment  by  default  .     .     .       476 
may  be  charged  as  garnishee,  where  jointly  liable  with  residents,  and 

all  are  garnished 477 

NOTICE, 

of  prior  attachment  will  not  prevent  an  officer's  attaching  again, 
where  the  first  attaching  officer  has  relin(}uished  his  possession, 
unless  the  property  has  been  receipted  for  by  a  bailee,  and  the 

contract  of  bailment  is  still  subsisting 292  b 

NOTICE   BY   PUBLICATION, 

to  absent  defendant,  when  required 436 

not  necessary  to  confer  jurisdiction 437 

what  is  sufficient 439-446 

insufficiency  of,  does  not  invalidate  title  to  pi-opcrty  acquired  through 

the  attachment 447,  448 

o. 

OFFICER, 

may  levy  an  attachment,  without  being  a  trespasser,  though  no  bond 
was  given  by  the  plaintiff,  unless  the  defect  appear  on  the  face 
of  the  writ 117 

issuing  attachment  without  bond,  is  liable  to  defendant  as  a  trespasser, 

if  the  writ  be  levied 118 

cannot  levy  an  attachment  before  the  writ  comes  into  his  hands     .     .    183  a 

is  not  protected  in  levying,  if  the  writ  was  issued  by  an  officer  having 

no  legal  power  to  issue  it 184 

is  justified  in  levy,  if  the  writ  be  in  legal  form,  and  issued  out  of  a 
court  having  competent  jurisdiction,  though  the  process  be  erro- 
neous and  voidable,  or  no  cause  of  action  exist     ....      185,  185  a 

levying  attachment  on  property  in  possession  of  a  stranger  claiming 
title  thereto,  is  not  justified  by  merely  producing  the  writ,  but 
must  prove  that  the  defendant  was  indebted  to  the  plaintiff,  and 
that  the  writ  was  regularly  issued 185  a 

may  levy  an  attachment  on  Sunday,  where  no  statute  forbids    .     .     .       187 

authority  of,  to  levy  an  attachment,  continues  until  the  return  day  of 

the  writ,  or  until  its  actual  return  before  that  day 187  a 

duty  of,  to  levy  an  attachment  on  any  property  of  the  defendant  he 

can  find 188 

ought  not  to  levy,  without  an  indemnity,  Avhere  there  is  danger  of 

his  committing  a  trespass 189 

to  be  entitled  to  indemnity,  must  notify  plaintiff  that  he  requires  it, 

before  proceeding  to  levy 189 

may  demand  indemnity  before  selling  the  property 189 

taking  a  writ,  with  directions  to  serve  in  a  particular  manner,  with- 
out requiring  indemnity,  is  bound  to  serve  it  according  to 
instructions 189  a 

is  bound  to  attach  sufficient  property,  if  found 190 

receiving  several  attachments,  is  bound  to  levy  them  all  on  all  the 

property  found 190 


INDEX.  755 

OFFICER  —  contimied.  Section 

is  bound  by  his  representations  to  plaintiff,  whereby  the  latter  is  led 

to  forego  further  attachment 190 

not  responsible  for  deficiency  of  levy,  where  caused  by  a  mistake  in 

the  writ  as  to  the  amount  to  be  attached 190 

duty  of,  to  execute  the  writ  as  soon  as  he  reasonably  can     ....       191 

bound  only  to  reasonable  diligence  in  making  levy 191  a 

when  several  acts  by,  in  levying  on  property,  will  be  considered  as 

one  act 192 

levy  of  attachment  by,  effected  by  unlawful  or  fraudulent  means,  is 

void 193 

in  making  levy,  must  make  it  in  conformity  to  law 191 

must  do  no  wrong  to  defendant 194 

is  a  trespasser  ah  initio,  if  he  departs  from  the  course  prescribed  by 

law  in  making  a  levy 194 

executing  lawful  process  in  a  lawful  manner,  is  never  a  trespasser  .  194  a 
when  a  trespasser,  all  acts  done  by  him  in  the  case  are  unlawful  .  .  194  a 
levying   an  attachment   on  property  not  liable  to   attachment,   is   a 

trespasser,  unless  defendant  assent 19o,  244  a 

levying  several  attachments  on  property  not  the  defendant's,  is   not 

liable  for  levying  the  last  one 196  6 

cannot  deduct  costs  and  expenses  from  proceeds  of  sale  of  projierty 

not  the  defendant's 196  c 

levying  attachment  on  property  not  the  defendant's,  is  a  trespasser, 
though  the  owner  give  him  no  notice,  and  make   no  demand   on 

him  for  it 197 

duties  and  liabilities  of,  in  cases  of  confusion  of  goods 199 

may  enter  a  store  by  force  to  effect  a  levy  of  attachment  ....  200 
may  not  enter  a  dwelling-house,  unless  to  reach  property  of  a  stranger  200 
is  not  a  trespasser  for  levying  on  more  property  in  value,  than  enough 

to  satisfy  plaintiff's  demand,  unless  he  act  oppressively      .     .     .       201 
abandoning  attachment,  loses  his  lien  on  the  property     .     .      202,  257,  290 

using  attached  property,  effect  of 203 

return  of  writ  by,  rules  concerning 204-220 

rights  of,  as  against  persons  claiming  attached  property  under  trans- 
fers alleged  to  be  fraudulent 225 

may  be  sued  in  trespass  by  the  pawnee  of  personal  property  for 
attaching   property   pawned    to    him,   in   an  action  against   the 

pawner  or  mortgagor 245 

money  in  hands  of,  collected  on  execution,  cannot  be  levied  on  as 

the  property  of  the  execution  plaintiff 251 

in  attaching  personalty,  must  reduce  it  to  possession 256 

what  possession  by,  will  constitute  an  attachment 256-258 

lodgment   of    writ   in   hands   of,    confers   no   rights   in    defendant's 

property 263 

cannot  decide  the  distribution  of  funds  between  executions  in  attach- 
ment suits 263  a 

cannot  levy  attachment  on  propijrty  in  the  hands  of  another  officer, 
under  an  attachment,  even  tliough  the  other  had  levied  on  more 
than  sufficient  to  satisfy  his  writ 267 


756  INDEX. 

OFFICER  —  coniinued.  Section 

his  right  to  recover  against  an  oflicer  who  has  seized  the  property  on 

which  he  had  made  a  prior  levy 268 

seizing  property  in  the  hands  of  one  liable  for  it  as  garnishee,  must 

hold  it  subject  to  the  prior  lien  of  the  garnishment 270 

suil'ering  his  possession  of  attached  property  to  be  lost,  it  may  be 

attached  by  another  officer 271 

liability  of,  for  attached  personal  property 290 

duty  of,  to  retain  possession  of  attached  personalty 290 

has  a  special  property  in  attached  eil'ects 291 

special  property  of,  in  attached  i  ifects,  is  an  insurable  interest      .     .       291 

is  not  bound  to  insure  his  S|iecial  [iroperty 291 

special  property  of,  continues  as  long  as  he  remains  liable  for  the 

attached  effects 291 

may  maintain  trover,  trespass,  or  replevin,  for  violation  of  his  posses- 
sion of  attached  effects 291 

in  case  of  death  of,  his  administrator  may  maintain  trover  for  attached 

effects,  for  the  benefit  of  the  attaching  creditor 291 

resignation  of  his   office   by,   will   not   deprive    him    of  his  right  of 

action  for  attached  effects 291 

to  maintain  his  special  property  in  attached  effects,  must,  in  his  pro- 
ceedings with  it  after  the  attachment,  comply  with  all  the  require- 
ments of  the  law,  or  show  some  legal  excuse  for  not  doing  so      .       291 
selling   attached  property  without  lawful  authorit}',  is  a  trespasser 

ab  initio 291 

degree  of  care  and  diligence  he  is  held  to  in  keeping  attached  effects  292 
should  not  leave  attached  effects  in  possession  of  the  defendant  ,  .  292  a 
cannot  make  the  defendant  his  agent  to  keep  the  attached  effects  .  .  292  a 
may  employ  defendant's  wife  to  keep  the  attached  effects,  when  .  .  292  a 
suffering  attached  effects  to  be  mixed  with  others  of  a  like  kind, 
previously  attached  by  another  officer,  who  returns  an  attachment 

of  the  whole,  loses  his  lien 292  c 

effect  of  his  removal  of  attached  effects  into  a  foreign  jurisdiction     .    292  d 
lien  of,  not  lost  by  his  placing  the  attached  effects  in  the  keeping  of 

a  servant,  unless  the  servant  abandon  possession 292  e 

what  is  sufficient  excuse  for  his  not  having  property  in  hand  to  meet 

execution 294 

what  is  insufficient  excuse  in  such  case 295-303 

special  property  of,  in  attached  effects,  is  not  devested  by  the  taking 

of  them  out  of  his  custody  by  a  wrong-doer 297 

may  follow  attached  property,  when  taken  from  him  by  a  wrong-doer, 

and  retake  it  wherever  he  finds  it 297 

in  action  against,  for  failing  to  [)roduce  attached  property  on  execu- 
tion, he  cannot  impeach  plaintiff's  judgment,  except   for  fraud; 
nor  can  he  take  advantage  of  the  loss  of  the  writ  of  attachment .       304 
may,  in  such  action,  show,  in  mitigation  of  damages,  that  the  execu- 
tion has  been  satisfied 304 

demand  must  be  made   upon,  for  the  attached  property,  upon  the 

execution 805 

can  he  be   sued   by  defendant   for   damage   to   attached   property, 

while  the  attachment  is  pending? 307 


INDEX.  757 

OFFICER  —  continued.  Section 

may  excuse  himself,  when   sued  by  defendant  for  loss   or  waste  of 
attached  property,  by  showing  that'  he  had  applied   the  amount 
to  the  defendant's  use  by  paying  expenses  of  keeping  the  prop- 
erty, or  by  satisfying  other  executions  against  defendant  .      .      .       308 
rule   of  damages   against,  in  action   for  failing  to  produce  attached 

property  on  execution -309 

sued  for  not  producing  attached  property  on  execution,  is  bound  for 
value  of  the  property  as  stated  in  his   return,   if  there  be  no 

other  evidence  of  value 310 

is  entitled  to  be  reimbursed  expenses  of  keeping  attached  property    .       311 
rights,  duties,  and  responsibilities  of,  in  connection  with  bailment  of 

attached  property 344-396 

is  bound  to  return  attached  property  to   defendant,  or  the  owner,  on 

dissolution  of  the  attachment 426 

when  liability  of  accrues,  for  return  of  attached  property  to  defendant       427 

must  make  return  of  garnishment,  according  to  law 451  (Z 

public,  not  chargeable  as  garnishee  for  money  in  his  hands  payable 

to  defendant 493,  494 

OMISSION, 

of  recital  in  a  writ  that  a  bond  was  given,  will  not  vitiate  the  attach- 
ment        119 

of  a  word  in  an  attachment  bond  will  not  vitiate  it,  if,  by  looking  at 
the  whole  instrument  and  the  statute,  it  is  apparent  what  word 

was  intended  to  be  inserted 124 

OWNER, 

of"  attached  property,  entitled  to  return  thereof  on  the  dissolution  of 

the  attachment 290,  426 


P. 

PARTNER, 

cannot  sue  partner  by  attachment  for  an  amount  alleged  to  be  due 

growing  out  of  partnership  transactions 34 

cannot  be  subjected   as   garnishee    of  his   copartner,   in    respect   of 

unsettled  partnership  accounts 545 

PARTNERS, 

one  of  several,  not  chargeable  as  garnishee  without  joinder  of  the 

others 561 

unless  part  are  out  of  the  jurisdiction 562 

if  part   are   in    foreign   country,   those    in   this    country   cannot    be 

charged  as  garnishees 564 

in  garnishment  of  a  firm,  the  names  of  the  individual  members  of  it 

must  be  set  out 564  a 

where  all  the  members   of  a  firm  are  garnished,  the  answer  of  one 

admitting   a   debt   from   the   firm   to    defendant  will    authorize 

judgment  against  all 565 

PARTNERSHIP, 

garnishment  of,  by  its  firm  name,  charges  no  member  of  it       ...    564  a 
PARTNERSHIP   CREDITS, 

cannot  be  attached  for  debt  of  one  partner 567-570 


758 


INDEX. 


PARTNERSHIP  CREmTS  — continued.  Section 

■where  partnership  is  dissolved  by  death  of  one  or  more  partners,  a 
debt  due  to   tlie  late   firm  may  be  attached  in  an  action  against 

the  survivor 571 

PAYMENT, 

by  one  oC  several  debtors  not  garnished,  after  garnishment  of  another 

jointly  and  severally  liable  with  liini,  will  discharge  garnishee     .        560 

voluntary,  by  garnishee,  after  garnishment,  will  not  discharge  him     .     674  a 

by  garnishee,  after  garnishment,  is  voluntary,   unless  made   under 

com[)ulsioii  of  judicial  order  or  process 674  a 

by  agent  of  garnishee,  after  garnishment,  but  in  ignorance  of  it,  will 

discharge  the  garnishee 674  a 

by  garnishee,  time  of,  must  be  shown  by  him,  when  pleaded  as  a  defence    674  b 

by  garnishee,  set  up  as  a  defence,  must  be  a  payment  in  fact,  and 
not  a  contrivance  intended  to  be  a  payment  or  not,  as  circum- 
stances might  subsequently  require 674  d 

by  a  co-obligor  of  garnishee,  who  was  not  garnished,  will  discharge 

the  garnishee 674  e 

by  garnishee,  after  judgment  discharging  him,  and  before  writ  of 
error  thereto,  is  a  good  defence,  though  the  judgment  be  after- 
wards reversed 674/" 

by  garnishee,  under  previous  garnishment,  will  discharge  him  .     .     .       675 

by  garnishee,  on  irregular  execution  in  favor  of  defendant,  after  gar- 
nishment, will  not  discharge  him 676 

previous,  voluntary,  by  garnishee  to  creditor  of  defendant  will  not 

discharge  him 677 

by  garnishee,  under  judgment  against  him  as  such,  bars  subsequent 
action  by  defendant  against  him  upon  the  debt  in  respect  of 
which  the  garnishee  was  charged 710 

by  one  of  several  joint  debtors,  under  garnishment,  is  a  good  defence 

for  all  the  joint  debtors,  against  action  by  the  defendant  .     .     .       710 

by  garnishee,  wherever  it  would  avail  him,  will  equally  avail  one  col- 
laterally and  contingently  bound  for  the  debt  in  respect  of  which 
the  garnishee  was  charged 710  a 

by  garnishee,  requisites  of,  as  a  defence  to  him  against  action  by 

defendant 711 

PENDING  ATTACHMENT, 

may  be  pleaded  in  abatement  of  suit  by  defendant  against  garnishee 

for  the  debt 700 

is  good  ground  for  a  continuance  while  the  attachment  is  pending      .       701 

when  may  be  plead(;d  puis  darrein  continuance 702 

should  have  no  effect  upon  creditor's  action  against  his  debtor,  unless 

the  attachment  acts  directly,  and  not  intermediately,  on  the  latter       703 

is  no  defence  to  an  action  against  the  garnishee  by  an  assignee  of  the 

defendant 703  a 

cannot  be  pleaded  in  favor  of  a  plaintiff  who  has  garnished  himself, 

and  is  afterwards  sued  by  the  attachment  defendant      ....    703  b 

effect  of,  upon  liability  of  garnishee  for  interest  pending  the  attach- 
ment suit 704 

in  pleading,  the  plea  must  contain  all  facts  necessary  to  show  that  the 

court  in  which  the  attachment  is  pending,  has  jurisdiction      .     .       705 


INDEX. 


759 


PENSIONER,  Section 

money  collected  for  him,  as  pension,  cannot  be  attached  in  the  hands 

of  his  agent 246 

PERISHABLE   PROPERTY, 

when  not  attachable 249 

obligation  of  attaching  officer  concerning 300,  301 

PERSONAL  PROPERTY, 

which  cannot  be  sold  under  execution,  cannot  be  attached  ....       244 

which  can  be  sold  under  execution,  may  be  attached 244 

exempt  from  execution,  not  attachable 244  a 

the  sale  of  which  is  penal,  not  attachable 244  h 

what  descriptions  of  property  are  included  in  the  term 244  c 

pawned   or   mortgaged,   is   not  attachable  in  an  action  against  the 

pawner  or  mortgagor 245 

pawnee  of,  may  maintain  trespass  against  officer  for  attaching,  in  an 

action  against  the  pawner 245 

ordered,  with  authority  to  draw  for  the  price,  cannot  be  attached  for 

the  debt  of  the  purchaser  before  delivery  to  him 245 

upon  which  freight  is  due,  not  attachable,  without  paying  the  freight       245 
manufactured  by  one   for  another,  cannot  be  attached  in  an  action 

against  the  latter 245 

in  hands  of  a  bailee  for  hire,  cannot  be  attached  in  a  suit  against  the 

bailor  during  the  term  of  the  bailment 245 

interest  of  lessee  of,  may  be  attached 245 

interest  of  lessor  of,  may  not  be  attached 245 

consigned  to  a  factor  entitled  to  a  privilege  thereon,  cannot  be  taken 
from  him  under  an  attachment  against  the  owner,  without  paying 

factor's  claim 245 

not  attachable  where  defendant  has  lost  his  power  over  it,  or  has  not 
acquired  such  interest  in  or  power  over  it  as  to  permit  him  to 

dispose  of  it  adversely  to  others 245,  245  a,  246 

agreed  to  be  sold  to  another,  when  attachable  for  vendee's  debt    .     .    245  a 
ordered,  and  placed  on   a  vessel  for  transportation,  cannot  be   at- 
tached as  the  purchaser's  before  bill  of  lading  signed  for  them     .       246 
shipped  to  a  factor,  may,  while  in  transitu,  be  attached  as  the  prop- 
erty of  the  shipper 246 

ordered,  to  be  paid  for  on  arrival,  cannot  be  attached  as  the  pur- 
chaser's before  they  are  paid  for 246 

sold  to  one  for  resale,  to  be  accounted  for,  at  a  future  day,  to  the 
vendor,  and  if  sold  to  be  paid  for ;  otherwise,  to  be  returned ; 

cannot  be  attached  as  property  of  the  vendee 246 

sold  and  delivered,  upon  condition  that  the  title  shall  not  vest  in  the 
vendee  unless  the  price  be  paid  within  a  specified  time,  cannot  be 

attached  for  debt  of  the  vendee  till  paid  for 246 

the  possession  of  which  is  acquired  by  fraudulent  means,  cannot  be 
attached  in  suit  against  him  who  so  acquired  it,  so  as  to  hold  it 
against  the  person  from  whom  it  was  fraudulently  obtained     .     .       246 
consigned  to  a  factor,  cannot  be  attached  for  his  debt,  though  he 

have  a  lien  on  it 246 

lent  to  one,  cannot  be  attached  for  his  debt 246 


760  INDEX. 

PERSONAL   PROPERTY  —  continued.  Section 

vested  remainder  in,   cannot  be  attached  during  the  continuance  of 

the  life-estate,  while  the  tenant  for  life  is  in  possession  .  .  .  246 
defendant's  interest  in,  in  common  with  others,  may  be  attached  .  .  248 
of  such  a  nature,  that  an  attachment  of  it  would  injure  defendant, 

■without  benefiting  plaintiif,  is  not  attachable 249 

so  perishable  that  the  purpose  of  the  attachment  cannot  be  effected 

before  it  will  decay  and  become  worthless,  cannot  be  attached    .       249 

in  process  of  manufacture,  not  attachable 250 

in  cusiodia  legis,  not  attachable 251,  267 

in  the  defendant's  present  use,  maybe  attached,  but  not  if  worn  about 

his  person  as  })art  of  his  apparel 252 

of  individuals  or  corporations  who  owe  duties  to   the  public,  is   not 

for  that  reason  exempt  from  attachment,  except  when  in  actual 

use  in  the  discharge  of  such  duty 252  a 

may  be  attached,  though  not  at  the  time  in  defendant's  possession      .       253 

found  in  defendant's  possession,  is  presumed  to  be  his 253  a 

manufactured  by  a  workman  out  of  materials   furnished  by  another, 

cannot  be  attached  for  the  workman's  debt 254 

in  possession  of  one  not  its  owner,  is  not  attachable  for  his  debt  .  .  254 
must  be  taken  into   officer's  possession,   in   order  to  constitute  an 

attachment 256,  257 

heavy  and  unmanageable  articles  of,  how  taken  and  held  by  officer,  258,  258  a 
attached  by  one  officer,  and  in  his  possession,  cannot  be  seized  by 

another 267 

if  officer  lose  his  possession  of,  may  be  attached  by  another      ...       271 

attached,  officer  has  special  property  in 290 

if  officer  do  not  retain  possession  of,  the  lien  of  attachment  is  lost  as 

to  subsequent  attachers  or  bona  fide  purchasers  from  defendant, 

but  not  as  against  the  defendant 290 

officer  attaching,  has  special  property  in 291 

to  what  degree   of  care  and  diligence  in  keeping, 

he  is  to  be  held 292 

attached,  should  not  be  left  in  defendant's  possession 292  a 

■when  may  be  attached  by  another  officer 292  b 

attached,  and  intermixed  with  other  like  property  attached  by  another 

officer,  effect  of 292  c 

removal  of,  by  officer,  into  a  foreign  jurisdiction,  effect  of  .  .  .  .  292  d 
abandonment  of  possession  of,  by  officer's  servant,  effect  of  .  .  .  292  e 
not  produced  by  officer  on  execution,  what  will  and  will  not  excuse,  293-304 
no  attachment  of,  unless  it  be  returned  in  -writing  on  the  writ  .  .  .  424 
continued  possession  of,  by  officer,  necessary  to  preserve  his  lien        .       428 

what  descriptions  of,  will  charge  garnishee 463,  480,  481 

what  possession  of,  will  charge  garnishee 482-491 

PLAINTIFF, 

obtaining  attachment  irregularly,  is  a  trespasser  ab  initio,  if  the  attach- 
ment be  set  aside  for  irregularity  185  b 
when  sued  for  trespass,  cannot  set 
up  as  a  defence  that  he  returned 
the  property  to  the  defendant, 
unless  the  latter  accepted  it     •     .    185  c 


INDEX.  761 

PLAINTIFF — contiiuied.  Section 

obtaining  attachment  irregularly,  when  so  sued,  cannot  show,  in  miti- 
gation of  damages,  that  the  property  was  afterwards  sold  under 
execution   in    his    favor,  but    may  show   such    sale  by   another 

creditor 185  c 

giving  an  officer  indemnity,  with  knowledge  that  the  property  is 
claimed   by  another  than  the   defendant,  is   responsible  for  the 

officer's  acts 189 

directing  or  ratifying  a  levy  on  property  not  the  defendant's,  is  liable 

for  the  trespass 196 

acquires    no  higher  or  better  rights   in  atta<'hed  property,  than  the 

defendant  had  when  the  attachment  was  levied 223 

in  attachment,  cannot  maintain  action  against  a  trespasser  for  violat- 
ing officer's  possession  of  attached  property 291 

in  first  attachment,  which  was  quashed,  but  the  judgment  quashing  it 
was  reversed,  may  recover  from  subsequent  attacher  the  pro- 
ceeds of  the  property  attached  by  both 429 

dismissing  his  suit,  but  afterwards,  with  the  defendant's  consent, 
obtaining  leave  of  the  court  to  reinstate  it  on  the  docket,  cannot 

assert  priority  over  a  subsequent  attachment 429 

not  liable,  when  his  judgment  is  reversed  on  grounds  not  affecting 
the  merits  of  his   claim,  to  refund  to  the  defendant  the  money 

made  under  the  judgment 430 

when  bound,  notwithstanding  his  judgment  against  a  garnishee,  to 
refund  to  one  whose  interest  in  the  property  in  respect  to  which 
the  garnishee  was  charged  was  known  to  him  before  the  garnish- 
ment       529 

garnishing  himself,  cannot  plead  the  garnishment  either  in  abatement 

or  in  bar  of  a  suit  by  defendant  against  him 703  & 

PLEDGEE, 

of  personalty,  as  security  for  debt,  may   sue  by  attachment  on  the 

debt  without  returning  the  pledge 33 

not  liable  as  garnishee  of  the  pledger,  in  respect  of  the 

pledge 539 

may  be  charged  as  garnishee  in  respect  thereof,  if  he 

relinquish  his  lien  by  attaching  the  property   .     .     .       540 
POSSESSION, 

what  will  be  sufficient,  to  constitute  an  attachment 256 

by  garnishee  of  defendant's  property,  what  will  make  him  liable    .     .      482, 

491a 
PRIORITY, 

over  other  debts  of  an  intestate  garnishee,  is  not  obtained  by  judg- 
ment against  garnishee's  administrator 226 

•    in  determining  it,  as  between  dififerent  levies  of  attachments,  fractions 

of  a  day  will  be  considered 261 

lost  by  defect  in  plaintiff's  proceedings,  cannot  be  regained  by  pro- 
ceedings in  equity 262 

of  service,  among  several  attachments,  how  settled 265,266 

PRIVATE    PAPERS, 

not  attachable 249 


762  INDEX. 

PRIVILEGED   COMIMUNICATION,  Section 

between  client  and  attorney,  how   to  be  regarded  when  the  latter  is 

summoned  and  answers  as  garnishee  of  the  former 641 

PRIVITY, 

of  contract   and   of  interest,  necessary  to  charge  garnishee  for  prop- 
erty       485-490 

so  for  indebtedness 546 

PROMISSORY   NOTE, 

garnishee  holding  for  defendant,  is  not  chargeable  for 481 

unnegotiable,  maker  of,  may  be  charged  as  garnishee  of  payee,  at  any 
time  before  he  receives  notice  of  its  assign- 
ment          574, 575 

when  garnished,  should  set  forth  in  his  answer 
an   assignment  of  which  he   had  previous 

notice 576 

should  bring  to  the  notice  of  the  court  any 
assignment  notified  to  him  after  his  answer 
as  garnishee,   whether  the   assignment   be 

legal  or  equitable 576,577 

negotiable,  maker  of,  cannot  be  garnished  in  action  against  payee, 
under  an  attachment  served  before  its  matu- 
rity, unless  before  judgment  therein  the  note 
had  become    due,    and   was   then   still   the 

property  of  the  defendant 582-588 

garnishment  of,  in  suit  against  the  payee,  is 
no  defence  to  an  action  on  it  by  an  indorsee 

against  the  payee 703  a 

notice  of  assignment  of,  should  be  given  by  assignee  to  maker,  to  pre- 
vent the  latter's  being  charged  as  garnishee  of  the  payee  .     .   718,  719 
maker  of,  pleading  recovery  against  him  as  garnishee  of  payee,  need 

not  aver  that  he  had  no  notice  of  the  assignment  of  the  note  .     .       720 
holder  of,  with  express  notice  of  previous  garnishment  of  the  maker, 
is  barred  of  recourse  against  the  maker,  if  the  latter  be  charged  as 
garnishee  of  the  pavee,  and  pay  the  amount  of  the  note     .     .     .       721 
PUBLICATION, 

is  made  where  property  is  attached,  and  the  defendant  is  not  served 

and  does  not  appear 5 

notice  by,  to  absent  defendants,  when  required 436 

is  not  necessary  to  confer  jurisdiction 437 

the  fact  of,  must  appear  in  the  record,  and  how  proven 437  a 

sufficiency  of 439-446 

insufficiency  of,  does  not  invalidate  title  to  property  acquired  through 

the  attachment 447,  448 

PUBLIC   OFFICER, 

is  not,  as  such,  liable  to  garnishment 493 

PURCHASER, 

of  personal  property,  to  be  paid  for  on  arrival,  has  no  attachable 

interest  therein  until  it  arrives  and  is  paid  for 246 

acquiring  possession  of  property  by  fraudulent  means,  has  no  attach- 
able interest  therein 246 


INDEX.  763 


R. 

RATIFICATION,  Section 

by  plaintiff,  of  the  unauthorized  act  of  a  party  in  signing  his  name  to 

an  attachment  bond,  effect  of 134 

of  a  levy  on  property  not  the  defendant's,  takes  place  if 

he  defend  against  a  claim  of  property  by  the  owner     .       196 
REAL  ESTATE, 

may  be  attached,  though  defendant  have  sufficient  personalty   .     .     .       233 
attachment  of,  reaches  only  interest  of  defendant  in,  when  made   .     .       234 

interest  of  mortgagee  in,  cannot  be  attached 235 

attachment  of,  how  returned 236-238 

gives  plaintiff  a  lien,  but  the  officer  acquires  no  special 

property 239,  240 

undivided  interests  in,  may  be  attached 241 

when  attachment  of,  is  effected 242 

garnishee  not  chargeable  for 465 

RECEIPTOR, 

(See  Bailment  of  Attached  Property.) 
RECEIVER, 

property  placed  in  the  hands  of,  by  order  of  court,  under  a  creditor's 

bill,  cannot  be  attached  by  another  creditor 251 

may  follow  into  another  State,  and  reclaim  property  to  which  he  was, 
as  receiver,  entitled,  but  which  was  wrongfully  removed  by  an- 
other to  another  State,  and  thei-e  attached 251 

of  a  corporation  in  one  State,  cannot  successfully  assert  his  title  to 
property  in  another  State,  against  an  attachment  levied   on  it 

there,  before  he  reduced  it  to  possession 251 

appointed  by  a  court,  money  in  hands  of,  cannot  be  attached,  unless 

the  court  has  ordered  it  to  be  paid  to  the  defendant      ....    509  a 
RECITAL, 

omission  of  in  a  writ,  that  a  bond  was  given,  will  not  vitiate  the  at- 
tachment      119 

in  attachment  bond,  showing  that  it  was  not  executed  till  after  the  writ 

issued,  is  fatal  to  the  attachment 123 

in  condition  of  attachment  bond,  that  plaintiff  had  issued  a  writ  of  at- 
tachment against  defendant,  estops  obligors  from  denying  that  fact       169 
RECORD, 

affidavit  is  part  of 90 

must  show  the  facts  authorizing  exercise  of  jurisdiction  by  a  court 

exercising  a  special  and  limited  jurisdiction 90 

attachment  bond  must  appear  in 119 

reasons  in  favor  of  motion  to  set  aside,  dissolve,  or  quash  attachment, 

must  be  spread  upon 420 

the  fact  of  publication  of  notice  must  appear  in 437  a 

of  judgment,  seizure  of,  by  officer  under  attachment,  is  no  attachment 

of  the  judgment 509 

what  is,  in  a  garnishment  proceeding 658  a 

must  show  all  that  the  law  requires  to  hold  debt  of  garnishee,  where 
he  pleads  its  payment  under  attachment  in  bar  of  action  by  at- 
tachment defendant  against  him 712 


764  INDEX. 

RECOUPMENT,  Section 

garnishee  is  entitled  to,  against  his  liability  to  defendant     ....    689  a 
REFERENCE, 

of  attaehment  suit,  and  all  demands  between  plaintilF  and  defendant, 
to  arbitration,  does  not  dissolve  attachment,  if  no  new  demands 

are  included 288 

judgment  on,  against  garnishee,  will  protect  him 714 

REFUSAL  TO   ANSWER, 

by  garnishee,  effect  of CSC,  C57 

REMOVAL, 

of  property,  as  a  ground  of  attachment C9-71 

attached,   into   a  foreign  jurisdiction,   by  the  attaching  t 

officer,  effect  of 292  d 

of  officer  from  office,   does   not  excuse   his   failure   to   produce   at- 
tached property  to  meet  execution 299 

REPLEVIN, 

may  be  maintained  against  officer  attaching  property  of  a  stranger     .        196 
will  lie  in  favor  of  a  consignee  of  property  having  privilege  thereon, 
against  officer,  for  attaching  the  property  in  an  action  against  the 

consignor 245 

will  lie  in  favor  of  an  officer,  for  a  violation  of  his   possession  of  at- 
tached effects 291 

REPLEVY  BOND, 

(See  Dklivery  Bond.) 
REPRESENTATIVE   PERSONS, 

may  not  be  sued  by  attachment 81 

RESIDENCE, 

does  not  necessarily  involve  domicile 58 

no  length  of,  without  intention  of  remaining,  constitutes  domicile      .         58 

of  wife,  follows  that  of  her  husband 65  a 

RESIDENT, 

defined 69 

RESIGNATION, 

of  his  office,  by  an  attaching  officer,  will  not  deprive  him  of  his  right 

of  action  for  attached  effects 291 

RETURN, 

of  attachment,  rules  concerning 204-220 

is  evidence  in  favor  of  the  officer 210 

presumed  correct  till  the  contrary  appear 210 

if  not  made  in  the  time  required  by  law,  the  officer  cannot  justify 

under  the  writ 210  a 

misdescription  in,  of  property  attached,    when   will   not  vitiate  at- 
tachment      210  b 

when  made,  is  beyond  the  reach  of  the  officer  or  the  court,  unless  a 

proper  case  for  amendment  be  made 211 

amendment  of,  when  may  be  allowed  by  court 212 

may  not  be  amended  as  a  matter  of  right  in  the  officer 213 

amendment  of,  relates  to  the  time  when  the  original  return  was  made       215 
where  leave  to  amend  is  asked,  there  should  be  something  to  amend 

by 217 


INDEX.  765 

RETURN  —  continued.  Section 

of  attachment  of  real  estate,  how  made 236-238 

rules  regarding,  as  between  attachments  served  on  same  day,  265,  265  a,  266 
of  attached  property,  defendant  or  owner  entitled  to  when  attach- 
ment is  dissolved,  but  not  until  satisfiictory  evidence  be  given  to 

the  officer  of  the  dissolution  of  the  attachment 426 

of  attached  property  to  owner,  when  officer  is  bound  to  make  .     .     .       427 

is   suspended   by    appeal   or   writ   of 

error 428 

of  Writ,  in  case  of  garnishment,  must  be  made  according  to  law     .     .    451  d 

revp:rsal, 

J  of  judgment  for  plaintiff,  not  on  the  merits,  after  he  has  received 
proceeds  of  sale  of  attached  property,  does  not  entitle  defendant 
to  recover  back  from  him  the  proceeds 430 

s. 

SATISFACTION, 

attachments  entitled  to,  in  the  order  of  their  service 231 

of  plaintiff's  claim  against  defendant,  may  be  set  up  by  defendant 

to  prevent  judgment  against 

garnishee 658  c 

may  be  set  up  by  garnishee 
in  bar  of  judgment  against 

liim 673 

S  AFE-DEPOSIT   COMPANY, 

summoned  as  garnishee,  cannot  be  required  by  the  court  to  open  a 
safe  rented  by  the  defendant,  and  file  an  inventory  of  its  con- 
tents        451  a 

SCHOOL   COMMISSIONER, 

of  a  city,  cannot  be  garnished  on  account  of  salary  due  to  a  teacher    .       516 

of  a  State,  cannot  in  such  case  be  garnished 516  a 

SCHOOL  DIRECTORS, 

cannot  be  garnished  on  account  of  salary  due  to  a  teacher  ....       494 
SCHOOL-DISTRICT  TREASURER, 

not  chargeable  as  garnishee  on  account  of  money  due  to  a  teacher      .       494 
SECURITY," 

collateral,  the  holding  of,  by  plaintiff  does  not  prevent  his  suing  by 

attachment 35 

SET-OFF, 

when  pleadable  by  garnishee,  against  his  liability  to  defendant      .     683-689 
SHERIFF, 

money  in  hands  of,  collected  on  execution,  not  attachable  in   action 

against  execution  plaintiff 251,505 

not  subject  to  garnishment  in  respect  thereof 503-506 

nor  in  respect  of  an  uncollected  execution 507 

but  may  be,  in  respect  of  a  surplus  in  his  hands,  not  needed  to  pay 

execution 508 

SIMULTANEOUS  ATTACHMENTS, 

are  entitled,  each,  to  an  aliquot  share  of  the  proceeds  of  attached 

property 263 


766  INDEX. 

SIMULTANEOUS  ATTACHMENTS  —  continued.  Section 

officer  (.'xecutiiii;;,  should   retVr  to  the  court  the  distribution  of  the 

fund 263  a 

will  be   presumed  to  be  so,  when  several  were  served  on  the  same 
day,   and  nothing  in  the  officer's  returns  shows   the    order  in 

priority 265 

officers  executing,  may  divide  the  property 266 

SLANDER. 

in  action  for,  attachment  will  not  lie 10 

SPECIAL  PROPERTY, 

is  vested  in  officer  by  levy  of  attachment 291 

of  officer,  is  an  insurable  interest 291 

continues  as  long  as  he  remains  liable  for  the  property, 

either  to  plaintiff  or  defendant 291 

in  attached  effects,  to  be  maintained,  he  must,  in  his  pro- 
ceedings with  them  after  the  attachment,  comply  with  all 
the  requirements  of  the  law,  or  show  some  legal  excuse 

for  not  doing  so 291 

in  event  of  his  death,  is  in  his  administrator 291 

SPECIFIC   PROPERTY, 

action  for  recovery  of,  attachment  will  not  lie  in 10 

STATE, 

cannot  be  garni.shed 516  a 

agent  of,  cannot  be  garnished   in  respect  of  money  held   by  him   as 

such 516  a 

STATE   AUDITOR, 

cannot  be  garnished  on  account  of  money  ordered  by  the  legislature 

to  be  paid  to  a  party 516  a 

STATE  COMPTROLLER, 

cannot  be  garnished  on  account  of  salary  payable  to  a  State  officer, 
or  on  account  of  bonds  deposited  with  him  by  a  foreign  insurance 

company 516  a 

STATE  TREASURER, 

cannot  be  garnished  on  account  of  bonds  deposited  with  him  by  a 
foreign  insurance  company,  or  on  account  of  money  ordered  by 

the  legislature  to  be  paid  to  a  party 516  a 

STATUTE    OF   FRAUDS, 

effect  of,  on  verbal  contracts  entered  into  by  the  garnishee  with  third 

persons,  set  up  in  discharge  of  his  liability 595 

garnishee  not  bound  to  set  up,  to  avoid  his  verbal  promise  ....       595 
STIPULATION, 

unsealed,   does  not  meet  tlie   requirements   of  a  bond  with   stated 

penalty 125 

STOCK, 

in  corporation  not  attachable,  unless  under  express  statute  ....       244 
■when  attachment  of,   is  authorized  by  law,  the  authority  extends  only 
to  the  stock  of  corporations  in  the  State,  and  not  to  that  of  cor- 
porations in  other  States 244 

when  attachable,  how  the  attachment  is  made    . 259 

STOPPAGE   IN   TRANSITU, 

vendor's  right  of,  not  precluded  by  attachment 245 


INDEX.  767 

STORE,  Section 

may  be  entered  to  levy  an  attachment 200 

STRANGER, 

meaning  of  the  word,  under  a  statute  authorizing  attached  property 
to  be  replevied   by  the  defendant,    "  or,  in  his   absence,  by  a 

stranger  " 333  a 

rights  and  liabilities  of 333  a 

SUBSEQUENT   ATTACHER, 

cannot  take  advantage  of  defect  in  attachment  bond  in  prior  attach- 
ment suit 143 

cannot  be  made   party  to  prior  attachment  suit,  for  the  purpose  of 

defeating  it,  on  account  of  irregularities  therein 262 

should  place  his  writ  in  hands  of  the  same  officer  who  had  made  a 

prior  attachment 269 

cannot  take  advantage   of  any  waiver  made  by  the  defendant  which 

causes  no  injustice  to  him 273 

when  he  may  have  prior  attachments  set  aside  for  fraud    ....    275,  282 

may  maintain  action  against  prior  fraudulent  attachers 276 

against  defendant   and  a  third  person,  who  pro- 
cured debtor's  property  to  be  attached  for  a 

fictitious  debt 277 

is  liable  to  previous  attacher,  for  proceeds  of  attached  property  paid 
to  him   by  officer,   when  the  judgment   quashing  the  previous 

attachment  was  reversed 429 

SUCCESSIVE   ATTACHMENTS, 

take  effect  in  the  order  of  service,  though  served  on  the  same  day  .       261 
if  returns  of  all  but  one  state  the  hour  of  service,  that  one  will  be 

postponed  to  the  others 265 

officer  executing,  may  in  his  return  indicate  the  order  of  their  service,  265  a 

should  be  placed  in  hands  of  the  same  officer 269 

SUNDAY, 

a  service  of  attachment  on,  will  be  set  aside  on  motion,  where  the  law 

forbids  the  service  of  writs  on  that  day 187 

but  if  there  be  no  prohibitory  statute,  service  may  be  on  that  day      .       187 

issue  of  attachment  on,  is  an  irregularity 417 

SUPERSEDEAS, 

use  of,  in  defeating  improvident  attachment 400 

SURETIES, 

in  attachment  bond,  insolvency  of,   may  be  taken  advantage  of  after 

plea  to  the  merits 124 

if  statute  required  attachment  bond  "with  sure- 
ties," one  will  be  sufficient       134  a 

if  statute  require  "two  good  and  sufficient  secu- 
rities," and  each  of  two  sureties  justify  in  an 
amount  equal  to  that  sworn  to,  it  is  sufficient  .  134  h 
must  be  good  for  "double  the  debt  sworn  to," 
when  that  is  required  by  the  statute,  and  if 
found  not  so,  the  plaintiff  cannot  reduce  his 
demand  so  as  to  make  it  one-half  of  the 
amount  for  which  they  are  good 134  c 


768 


INDEX. 


SUEETIES  —  continued.  Section 
in  attachment  bond,  if  statute    require   tliem   to  be  residents  of  the 
State,  it  is  not  necessary  to  say  in  the  instru- 
ment that  they  are  so 135 

new  may    be    substituted,  if  no   liabihty   on   the 
bond  has   accrued,  where  ])laintiir  needs  the 
testimony  of  tlie  orijjinal  sureties      ....        149 
liable  only  in  reference  to  the  particular  writ  for 

obtaining  which  the  bond  was  given       .     .     .       165 
may  be  sued  jointly  with   the  principal,  where 
action  may  be  maintained  on  the  bond  with- 
out previous  recovery  of  damages  in  a  distinct 

action 166  a 

in  delivery  bond,  may  move  to  quash  attachment 336  «,  419 

in  officer's  official  bond,  liable  for  his  failure  to  return  attached  prop- 
erty to  defendant  or  owner,  after  dissolution  of  attachment    .     .       426 
SURPLUS, 

of  money  in  hands  of  sheriff,  derived  from  sale  of  defendant's  prop- 
erty, may  be  attached 508 

of  money  in  hands  of  a  register  of  a  court  of  chancery,  derived  from 

sale  of  lands  under  mortgage,  may  be  attached 509  a 

SURPLUSAGE, 

in  affidavit,  will  not  vitiate  it 105 

in  attachment  bond,  will  not  vitiate  it 130 

SURVIVING  PARTNER, 

in  action  against,  for  his  individual  debt,  a  credit  of  the  late  partner- 
ship may  be  attached 571 


T. 

TAXES, 

due  to  a  municipal  corporation,  cannot  be  attached 516 

cannot  be  set   off  by  a  town,  when 
garnished,  against  its  indebtedness 

to  the  defendant 684  a 

TENANT  IN  COMMON, 

of  personalty,  his  interest  in  it  may  be  attached 248 

TICKET  AGENT, 

of  railroad,  employed  at   company's   office   to  sell  tickets,  cannot  be 

charged  as  garnishee  of  the  couipany 465  a 

TIME, 

when  debt  is  so  due  as  to  be  proceeded  on  by  attachment     ....         32 
TORT, 

attachment  will  not  lie  in  actions  for 10 

claim  of  defendant  for,  against  garnishee,  is  no  ground  for  charging 

the  latter 548 

TRANSFER, 

of  attached  property,  by  defendaut,  may  be  made,  subject  to  the  at- 
tachment     222 

made  after  the  attachment,  can- 
not defeat  it 224 


INDEX.  769 

TREASURER,  Section 

of  a  county,  cannot  be  garnished  on  account  of  money  due  from  the 

county  to  a  defendant 493 

of  a  school-district,  cannot  be  charged  as  garnishee  of  a  teacher  .      .       494 
of  a  city,  cannot  be  charged  as  garnishee  on  account  of  salary  of  an 

employee  of  the  city 512 

of  a  State,  salary  of  cannot  be  attached 516  a 

cannot  be  garnished  on  account  of  bonds  deposited  with 
him  by  a  foreign  insurance  company,  or  on  account  of 
money  ordered  by  the  legislature  to  be  paid  to  a  party,    516  a 
TREASURY  NOTES, 

may  be  attached 244 

TRESPASS, 

attachment  will  not  lie  in  action  of 10 

will  lie  against  officer  attaching  property  not  the  defendant's    .     .     196-198 
will  lie  in  favor  of  pawnee  of  property,  against  officer  attaching  it  in 

an  action  against  the  pawner 245 

will  lie  in  favor  of  an  officer  for  a  violation   of  his  possession  of 

attached  effects 291 

TRESPASSER, 

party  is,  who  causes  attachment  to  issue  irregularly 185  6 

when  an  officer  will  be  considered  to  be 194-201 

TROVER, 

attachment  will  not  lie  in  action  of 10 

will  lie  against  officer  attaching  property  not  the  defendant's     .     .     .       196 
will  lie  in  favor  of  an   officer  for  a  violation   of  his  possession   of 

attached  effects 291 

TRUSTS, 

o-arnishment  cannot  overthrow,  in  order  to  reach  money  supposed  to 

belong  to  a  debtor 454  h 

TRUSTEE, 

may  not  be  sued,  as  such,  by  attachment 81 

a  term  used  in  New  England  to  designate  a  garnishee 451 

of  an  express  trust,  cannot  be  charged  as  garnishee  of  the  cestui  que 
trust,    where,    to   hold   the   money   in   that   proceeding,  would 

defeat  the  trust 454  6 

appointed  by  courts,  or  holding  property  which  is  to  be  disposed  of 
by  the  order  of  a  court,  when  chargeable  as  garnishee  in  respect 

thereof 509  a 

of  insolvents,  cannot  be  charged  as  garnishee  in  respect  of  property 

in  their  hands  as  such 511 

TRUSTEE   PROCESS, 

a  term  used  in  New  England  in  the  sense  of  garnishment  process      .       451 


u. 

UNCERTAINTY, 

in  affidavit,  will  vitiate  it 104 

UNLIQUIDATED    DAMAGES, 

when  will  sustain  attachment 13-23 

49 


770  INDEX. 

UNLIQUroATED  DAMAGES  —  continued.  Section 

when  not 32-554 

claim  a.u;ainst  <rai"nishee  foi%  will  not  charge  him 548 

UNNEGOTIABLE   NOTE, 

maker  of  mav  be  garnished 574-581 

USE, 

of  attached  property  by  oflicer,  effect  of 203 

by  defendant,  without  interfering  with  officer's 
possession  or  injuring  the  property,  does  not 
dissolve  attachment 292  a,  358 

Y. 

VALUATION, 

of  property  attached,  officer  need  not  affix  in  his  return       ....       209 
if  given   in   his   return,  it  will   be   held  i)rima  facie  just  and  fair,  as 

against  him 206,  310 

VARIANCE, 

between  the  affidavit  and   attachment  and  the  complaint,  cannot  be 

taken  advantage  of  by  demurrer,  but  may  by  plea  in  abatement  .         36 
VENDEE, 

of  personalty  sold  and  delivered  to  him  upon  condition  that  the  title 
shall  not  vest  in  him,  unless  the  price  be  paid  within  a  specified 
time,  has  no  attachable  interest  therein  until  performance  of  the 

condition 246 

VENUE, 

omission  of  statement  of,  in  affidavit,  does  not  vitiate  it      ....      906 
VERDICT, 

after,  the  defendant,  if  he  appeared  and  pleaded  to  the  merits, 
cannot  set  up  that  the  cause  of  action  could  not  be  sued  on 
by  attachment 36 

w. 

WAGER, 

on   result   of  an    election,    may   be   attached   in   the   hands    of  the 

depositary 520 

WAIVER, 

by  a  defendant  in  an  attachment  suit,  cannot  be  taken  advantage   of 

by  a  subsequent  attacher 273 

WIFE, 

legal  residence  of,  follows  that  of  her  husband 65  a 

husband's  interest  in  her  c/ioses  z?i  acito«,  can  it  be  attached  ?    .     .     .       247 
of  defendant,    may   be   made   keeper   of  attached    property    of  her 

husband,  when 292  c 

WRIT  OF   ERROR, 

by  plaintitF,  suspends  right  of  defendant  to  return  of  attached  prop- 
erty after  dissolution  of  attachment 428 

WRONG-DOER, 

taking  attached  property  by,  out  of  officer's  possession,  does  not  dis- 
solve the  attachment -^  .     .     .       297 


'im 


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